The Council of the European Union has released its Conclusions on an enhanced patent system in Europe as part of ongoing efforts towards a unified European patent system, although a number of obstacles to the establishment of such a system remain.

BACKGROUND

Efforts dating back to the 1970s to introduce an EU patent have been unsuccessful. This is despite widespread support for the general principle of a Community wide patent, a recognition that a system for obtaining an EU patent could be significantly cheaper than the present system provided by the European Patent Convention, and that a unified jurisdiction for litigation of EU patents would reduce costs and improve certainty as compared to litigation of a European patent in several national courts.

The Conclusions, which were adopted on 4 December 2009, consist of two parts: one dealing with a proposed European and EU Patents Court (EEUPC) and the other with the EU Patent.

THE EEUPC

The proposed EEUPC consists of a Court of First Instance, which would be divided into a central division plus local or regional courts, and a central Court of Appeal. Both Courts would be able to refer points of European law to the European Court of Justice (ECJ).

To ensure quality, the panel of judges for a local or regional court in a Member State that sees relatively little patent litigation will include judges from States in which there is a greater amount of patent litigation.

The proposed EEUPC is to have exclusive jurisdiction in respect of litigation relating to validity and infringement of EU and European patents. The proposals allow for a transitional period of five years, during which time proceedings may still be initiated before the national courts and holders of European patents or patent applications granted or applied for prior to the new Agreement coming into force can opt out of the exclusive jurisdiction of the EEUPC.

THE EU PATENT

The proposals unfortunately duck the major issue of translations, stating merely that a separate regulation should govern the translation arrangements for the EU patent. On the matter of fees, the proposals suggest that a Select Committee should decide on both the level of fees and the extent to which those fees are distributed to national patent offices.

ENHANCED PARTNERSHIP

The proposals suggest “enhanced partnership” between the European Patent Office and industrial property offices of Member States, including the sharing of searches to avoid duplication of work. The proposals also envisage a role for national offices in disseminating patent information and acting as receiving offices for EU patent applications.

COMMENT

These proposals represent a step forward. However, the Conclusions recognise that some Member States have fundamental legal concerns concerning the creation of the EEUPC. In view of this, and the need for separate Regulation on translations, it appears that an EU patent system is still a distant prospect.