Recent progress toward Europe’s ‘community patent’

Australian exporters 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 lone application filed in the appropriate receiving office, 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 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.

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 (e.g., 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 the initial failure of the European CPC, 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 theoretical desirability of the Community patent meant that the issue would soon resurface – and in early 2006 the European Commission initiated public consultation the future of the Community patent. Although there remained widespread support for the notion, 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.