European Commission Issues Communication To Unlock EU-Wide Patent Debate

By Tove Iren S. Gerhardsen
BRUSSELS – While waiting for the time to ripen to introduce a single European Community patent, the European Commission has outlined a compromise that would start with a harmonised court system for patent lawsuits, an EU official said at a 3 April briefing in Brussels.

With this dossier stuck for 20 years, the Commission did not see a point in proposing a legal text, so it issued a communication that provides different suggestions for a possible roadmap, leaving it up to member states to become engaged “one way or another,” spokesperson Oliver Drewes from the Internal Market and Services Directorate General told Intellectual Property Watch.

The official said that the Commission was under pressure to form a harmonised patent system from companies and researchers and hoped the communication would spark new discussions, saying that it was “tactical” and a “strategic choice.”

A single Community patent would mean that a patent granted one place in Europe would be valid in the entire community. Debate on 2003 proposals showed that one of the main problems to be the cost of translation into all 23 EU languages.

There also has been no agreement on a draft plan for a centralised patent litigation system, but the new communication outlines a hybrid model: First improve the patent litigation system throughout Europe and then aim for a community patent. But instead of one centralised patent court as was proposed in the 2003 draft European Patent Litigation Agreement (EPLA) there would be chambers in each member state, according to the EU official. This system would work for existing patent systems, but also would be set up in anticipation of the single patent system, the official said.

In addition, there would be a final appeals court (final arbiter) under the European Court of Justice (ECJ), Drewes said, adding that the national courts would work in their respective languages. There seem to be some questions outstanding such as whether litigation in a national court, related to a nationally granted patent, would apply to other member states as well, or whether the harmonisation would kick in at the appeal level only. Drewes said there are still issues open for discussion, such as how the judicial system should work and what kind of judges should be appointed, but the main idea was to avoid a “double system.”

The communication is based on a 2006 stakeholder consultation held by the Commission, from which it has drawn “operational conclusions,” it said (IPW, EU Policy, 17 July 2006). In October, the Parliament agreed to move forward with a centralised court idea, provided “significant improvements” were made. Internal Market Commissioner Charlie McCreevy was originally scheduled to have a new draft EPLA proposal ready for the Parliament by the end of 2006
(IPW, European Policy, 13 October 2006).

The official said that patent litigation in different countries often is unaffordable to many companies, especially small- and medium-sized (SMEs) ones. The communication notes that it is much more expensive than in the United States and Japan, and the standards differ from country to country. It says that patents issued by the European Patent Office (EPO) are a “bundle of national patents,” and therefore litigations take place in national courts.

But there is civil society opposition to the proposal in the communication. The Foundation for a Free Information Infrastructure, representing 3,000 small-to-medium information technology firms and 8,000 IT professionals, said that “this proposal is based on flawed assumptions and will make it easier for large US companies to sue small European IT firms.”

“There are also some positive notes,” said FFII President Pieter Hintjens. “The Commission insists on independent judges, and recognises that the patent system as it stands today is largely unsuited for SMEs. But its focus on patent litigation costs is like putting lipstick on a pig. Unless the quality problems in the European Patent Office’s functioning are addressed, cheaper litigation will only make matters worse.”

Another source questioned the language cost issue if all the national courts were kept in place.

Others welcomed the communication. Jonathan Zuck, president of the Association for Competitive Technology, said: “We applaud the Commission for re-opening the debate on patent protection in Europe. Innovative SMEs in Europe have suffered significantly from the lack of legal certainty and the high costs associated with the current patent litigation system in Europe.”

Way Forward

The “Communication from the Commission to the European Parliament and the Council – Enhancing the patent system in Europe” (COM (2007) 29-03-07) will be sent to the Parliament and Council of member states, who will have to decide on procedure for moving forward, sources said. Both the current German EU presidency and the Portuguese presidency beginning in July are eager to move the issue forward, Drewes said.

But he denied that this was a way to sneak the ideas in “the back door” or “by stealth.” “We believe” this is the “way forward,” he said, referring to the consultations, and said the communication contained constructive elements from that.

A spokesperson said that the Commission hoped this would give new impetus but now it was up to member states to take responsibility for the process. He said it would be naïve to think there would be a solution “next week,” but it was the “role of the Commission” to put the options on the table.

The official said that the opposition to patents in general was another debate, but this was about the Commission’s commitment to member states.

More in 2008

“A separate and comprehensive communication on intellectual property rights is planned for 2008, to complement the patent communication and address outstanding non-legislative and horizontal issues in all fields of intellectual property,” the Commission said in a press release.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.