The Legal Affairs Committee of the European Parliament has backed proposals for the new “EU patent package”, consisting of a unitary patent, language regime, and unified patent court. However, the proposals continue to face stiff criticism from academics and practitioners across the European Union, as well as from the UK Parliamentary Scrutiny Committee.

BACKGROUND

The new system is intended to provide automatic unitary patent protection and substantially cut costs for EU firms and help boost their competitiveness. The European Commission says that when the new system is up to speed, an EU patent may cost just €680, compared to an average of €1,850 for an American one.

The Legal Affairs Committee has now, in three separate voting sessions, backed the deal that was struck on 1 December 2011 by European Parliament representatives and the Polish Presidency of the Council. If Parliament as a whole and the Council now confirm the deal, a new EU patent will be created.

THE EU PATENT PACKAGE

Any inventor would be able to apply for an EU patent, ensuring protection in all the 25 EU Member States concerned. Patents will be made available in English, French, and German, but applications may be submitted in any EU language. Translation costs from a language other than the three official ones would be compensated. Spain and Italy have so far opted out of the patent proposal due to disagreement over the proposed language regime (under which patents will be available in English, French, and German only), but could join the decision-making process at any time.  

An “enhanced cooperation procedure” was adopted to ensure the project could proceed with policies even if not all Member States agree. A unitary patent would therefore be valid automatically throughout the territories of those Member States participating in enhanced cooperation. Enhanced cooperation will remain open for non-participating countries and access to the unitary patent on the territory of participating Member States will also be available to businesses from the nonparticipating Member States.  

The European Parliament has further negotiated and agreed specific measures to facilitate access by small and medium enterprises to the European patent market. These measures range from stronger legal protection to full compensation of translation costs. Parliament also obtained an improvement in the rules on how patent offices share renewal fees, upon which the economic sustainability of the whole system lies.  

THE UNIFIED PATENT COURT

The establishment of a unified patent court is intended to cut costs and reduce legal uncertainty arising from differing national interpretations. The court will be set up through an international agreement currently being negotiated by Member States. The Court of Justice of the European Union (CJEU) in its March 2011 Opinion raised concerns on the compatibility with EU law of the proposed court. In response, the proposal now clearly stipulates that the unified court would respect the primacy of EU law and apply EU law in its entirety, be bound by CJEU rulings, and cooperate with the CJEU “to ensure the proper application and uniform interpretation of Union law, as any national court”.

COMMENT

The idea of a unitary patent has been under discussion since the 1960s but, despite the increased impetus towards the end of last year in pushing through the EU patent package, doubts and uncertainty remain among the patent community and Member States.  

In respect of the unitary patent, the UK Parliamentary Scrutiny Committee recently expressed concern over the inclusion of Articles 6 to 8 in the draft Regulation. These Articles make unitary patent law susceptible to the jurisdiction of the CJEU. In other words, they have the effect of obliging the proposed new patent court to refer questions for preliminary rulings to the CJEU. The concern is that this will result in delays and, further, that the judiciary is not sufficiently specialised to deal with patent law.  

The Committee said that principal among its concerns are  

The effect of the non-exclusive jurisdiction of the unified patent court on small businesses seeking to enforce EPO [European Patent Office] patents through national courts and the jurisdiction of the Court of Justice being extended to cover the infringement of patents.

Further, it said, from the submissions it has received there appeared to be a substantial body of expert opinion that thinks the CJEU would be wholly unsuited to the task, with profoundly negative consequences for the enforcement of intellectual property rights across the European Union.