The London Agreement dispensing with the requirement to translate European patents into the national language of each member state has finally been ratified by France after having been on the table for 6 years. The EPO announced yesterday that the Agreement would enter into force on 1st May this year. When in force, this Agreement will provide welcome translation costs savings and greater convenience to European patentees.

Business impact

The formal adoption of the London Agreement will provide a means to cheaper access for patentees to European-wide patent protection.

On the basis of the figures provided by the EPO, the translation costs involved in obtaining full EPC patent protection will now be around €4,200 as opposed to the current cost of around €30,000.

Present Situation

The European Patent Office grants European patents on the basis of a centralised procedure for the contracting states to the European Patent Convention (the "EPC"). The major advantage of this system is that an applicant can obtain a European patent by filing just one patent application. Once the application has been granted, it is then up to the patent proprietor to determine the geographic scope of the protection required: they can "validate" their patent in one, several or all of the EPC contracting states.

During this validation phase, the European patent must at present be translated into the official languages of each of the states in which protection is sought. The European Patent Office estimates the cost of fully translating the average length patent (22 pages) at approximately €1,400. Translating such a patent into the official language of each EPC contracting state could cost in the region of €30,000. However, the penalty for non-compliance with this requirement may be severe: Article 65 of the European Patent Convention states that if the translation of the European patent is not provided to the national patent office within the prescribed time limit, the patent may be deemed to be void ab initio in that state.

Effect of the London Agreement

In an attempt to reduce the costs associated with European patents, a proposed solution was adopted at the second intergovernmental conference of the European Patent Organisation in London in October 2000. This solution is known as the London Agreement.

This agreement aims to reduce the costs of European patent applications via the European Patent Office by a reciprocal agreement to waive national rights to require translations. In essence, states which have an official language that is one of the three official languages of the EPC (French, German and English) waive their right to require translations of the patent description and the legends accompanying drawings (the claims still have to be translated into the three official EPC languages). States that do not have English, French or German as their language can designate one of the official EPC languages and waive their right to require a translation if the patent has either been granted in, or translated into, that designated language. These states may, however, require the claims to be translated into the state's own official language. Also, in the event that there is a dispute relating to the patent, the patent proprietor must still supply a full translation of the patent to the relevant court and alleged infringer.

Ratification of the London Agreement To enter into force the London Agreement had to be ratified or acceded to by at least eight countries, including France, Germany and the United Kingdom.

By July 2006, the London Agreement had been ratified by Denmark, Monaco, Germany, the Netherlands, Switzerland and the United Kingdom, while Slovenia, Iceland and Latvia had deposited instruments of accession.

Up until earlier this year, full ratification of the London Agreement had been delayed by the French parliament due to concerns that the agreement could have an adverse effect on the French language.

However, following strong representations from patent groups and organisations in Europe, in May 2006 the French National Assembly and French Senate recommended the rapid ratification of the London Agreement to the French Prime Minister.

Subsequently, the French parliament voted to ask the French Constitutional Council to rule on whether the London Agreement complied with France's Constitution. Happily, the Council ruled on 28 September 2006 that ratification of the London Agreement would not be contrary to the French Constitution. Finally, France formally ratified the Agreement and the French Government deposited its instrument of ratification with the German Justice Ministry yesterday. Everything is now in place and the Agreement can enter into force on 1st May (that being the first day of the fourth month following the deposit of the last required instrument).

Comment

The formal adoption of the London Agreement will provide a means to cheaper access for patentees to European-wide patent protection. It will also be a small, but welcome step towards fuller integration of the European patent system. Nonetheless, it has been a long time coming and so the agreement and implementation of the major proposals for integration, the European Patent Litigation Agreement and the Community Patent, may be much more difficult to achieve.