Ongoing progress towards Europe’s community patent

It is possible to get a European Patent granted, but in order to enforce it an applicant must proceed via a bundle of individual patents covering selected countries within the European Union. The present system can be both expensive and complex – and many Australian-based patentees shy away from it as a result. However, moves are afoot to refine the European patent system so that a simpler, cheaper unitary patent – having effect throughout Europe is available. This article examines progress toward such a patent.

Australian exporters rightly regard Europe as one of the most important and lucrative markets in the world. However, many patent applicants – both local and foreign – have criticised the cost and complexity of gaining patent protection throughout Europe. Whereas the present system of granting and enforcing a patent throughout the respective member states of the European Patent Convention was supposed to circumvent such problems, many find that it only gives rise to a further layer of complexity, confusion and ultimately, cost.

Those having experienced such impediments will be heartened to know that moves are afoot to more completely harmonise what we now understand by the term “European Patent”.

The basic notion behind a community-type patent is that its grant affords the patentee a unitary right throughout all countries party to any such convention. This of course means a single patent application, a single examination conducted against unified patentability criteria, the grant of a single patent having equivalent effect throughout all member states – and a centralised opposition/revocation procedure whereby jurisdiction is afforded to one authority having effect throughout all countries party to the Convention. In short, the patent systems of the respective contracting states would be combined into one. Presently in the world, there is no such system as it pertains to patents, although, for example, there is a European Community Trade Mark (CTM) regime operating under essentially the same premise.

In theory, any such Community Patent Convention (CPC) is an attractive proposition. In reality, however, any such notion has been undermined historically by the need to find common ground – and with it, the time-honoured sticking points of negotiation and compromise – in short, politics. Although the CPC requires a certain level of harmonisation between the member states, history has shown this to be insufficient with which to achieve a community-type patent.

The European CPC (not to be confused with patents presently granted under the European Patent Convention) has been debated since the early 1970s. Whereas a bundle of nationally-enforceable patents (eg a European patent as we know it today) can be expensive for both the patentee in seeking enforcement – and a third party seeking revocation in a number of territories, a Community patent in theory circumvents both these problems. It would provide a patent right that is consistent throughout Europe – in turn, fulfilling the principle of even market conditions within the internal market.

The original iteration of the European CPC was actually ‘signed’ at Luxembourg in 1975 by the nine member states of the European Economic Community (EEC) at the time. However, it was not ratified by a sufficient number of these countries and consequently never entered into force. Attempts to revive it in 1989 met with a similar fate.

Notwithstanding this initial failure, several member states nonetheless introduced some measure of harmonisation into their national patent laws in anticipation of it being eventually ratified. To all intents and purposes, such harmonising measures resulted in European patent law as we know it today.

However, the desirability of the Community-type patent meant that the issue would soon resurface – and in early 2006 the European Commission initiated public consultation on the future of the Community patent. Although there remained widespread support for the concept, the results showed that there was no general consensus as to how best to proceed. The Commission then released a white paper in April 2007, seeking to “improve the patent system in Europe and revitalise the debate” on the Community patent.

In December 2009, it was reported that the European Union had agreed to accede as a contracting state to the European Patent Convention, meaning that patents granted by the European Patent Office would, when validated for the EU, have unitary effect throughout the entire territory (with the exceptions of Italy and Spain, who opted out in protest at the proposed language scheme, which would employ English, German and French at the exclusion of other languages). The necessary EU-legislation was approved by the European Parliament on 11 December 2012, and will enter into force date on or after 1 January 2014. By then, it should be possible to apply for a unitary patent in 25 of the 27 EU member states.

However, before a Community-type patent system can become reality, the various instruments supporting it must be established. For instance, a centralised opposition/revocation procedure is necessary whereby jurisdiction is afforded to one authority having effect throughout all countries party to the Convention. In June 2012, the EU member states agreed to create a Unitary Patent Central Court, accompanied by two sector-specific Courts. The central division of will be based in Paris, while mechanical engineering cases will be heard in Munich and chem/bio/pharma cases in London.

This recent progress merely confirms that progress remains “ongoing” toward a system that has proven unachievable over the past forty years. It remains to be see whether the text of a unitary EU patent can and will be agreed upon by the member states. If, ultimately, such an agreement is reached, it would provide a patent right that is consistent throughout Europe – and would provide patentees with a cheaper, more accessible system than they are offered at present. However, much work remains to be done – and for the meantime, clients applying for a “European Patent” have to make do with a system that is arguably only slightly less wieldly than the sum of its parts.