In recent days the Belgians have been circulating a revised compromise text where "more attention is given to the issues of automatic translation and cost reimbursement when an applicant files an application," an EU presidency official said.
This represents a small step forward in comparison to the previous compromise proposal, but critics still consider it insufficient.
Some member states and small and medium-sized enterprises (SMEs) are worried that the cost of filing patents will soar for applicants whose tongue is different from the three official languages proposed by the European Commission – English, French and German.
The system could indeed establish a competitive advantage for British, German and French companies, by allowing them to file applications in their own language that would become instantly legally-binding in all other EU member states.
Moreover, they would also benefit from translations into their language of patents initially filed in another tongue.
The proposed system means that an Estonian or Portuguese company will first have to check for patents already issued in English, French or German in order to avoid filing a non-original patent.
This would trigger extra costs, especially when the filed language is not English. Patents in this language are indeed more easily understandable due to the widespread use of English among the scientific community, which is not the case for German and French.
Madrid-Rome axis
Spain and Italy are opposed to the proposed regime. Madrid has presented an alternative proposal based on English and on a second language to be chosen at will by applicants, which would both become legally-binding.
But critics underline that such a system could generate legal uncertainty due to the high number of EU official languages.
The Italian minister in charge of EU affairs, Andrea Ronchi, threatened on several occasions to block the dossier by vetoing the current proposal, which needs the unanimous approval of the Council.
The Belgians offered to consider further options in order to avoid extra costs for applicants that do not speak English, French or German. They will be able to file a patent in their own language and will be reimbursed for the costs of the translation. "Reimbursements for translations will be paid with the fees paid by all applicants, including those who file patents in an official language," a Belgian official explained.
Moreover, the presidency maintained an offer to use a de facto monolingual system "as long as the quality of automatic translation remains insufficient". Under this proposal, all patents will be translated only into English and not into German and French.
This arrangement will be temporary until machine translations step in, bringing down costs substantially and therefore allowing translations into all EU official languages.
The core of the issue
However, the compromise proposed by the Belgians does not touch upon the heart of the issue, which is guaranteeing the status of a legally-binding language to German and French in addition to English.
This is what Rome and Madrid are mainly fighting against. As an alternative, they are requesting a monolingual system based on English or the inclusion of their own languages among the official tongues of the EU patent.
The latter proposal would trigger similar requests from other countries and it is thus less likely to find unanimity. Although the monolingual system is backed by many member states, it is profoundly opposed by two heavyweights – Germany and France.
"The route to a compromise is very narrow," explained a Belgian delegate, stressing that 25 countries had showed their backing for the proposal made by the Commission based on English, French and German.
Today's ministerial meeting in Luxembourg will address the issue as a priority but "it is unlikely to strike a deal," the official added. Two more meetings of the Competitiveness Council are scheduled before the end of the year in order to reach a compromise.
As a last resort, a smaller group of at least nine countries could decide to forge ahead using the so-called "enhanced cooperation" mechanism, but this option is widely discouraged because it would generate even higher legal uncertainty and fragmentation on the EU market.
