EU proposes legal steps towards common patent

European research ministers are expected to take a significant step towards introducing a Community patent when they meet tomorrow (28 May) in Brussels to discuss ways of improving competitiveness.

The move could finally break a deadlock which has paralysed Europe’s ability to make progress on the issue for much of the past decade. 

Recent efforts to establish a single legal system, which would have jurisdiction in patent disputes, have been hampered by technical disagreement over whether such a court would be an international body or part of the Community legal infrastructure. 

Some member states, including Germany, have favoured establishing an international body to handle Community patent cases, while others preferred a Community system. 

A compromise has been reached which would see the establishment of the Unified Patent Litigation System (UPLS), something of a hybrid between a full Community body and an international institution. 

Ministers are now expected to ask the European Court of Justice (ECJ) whether the proposed compromise is compatible with Community law. This is seen as the final hurdle to establishing the UPLS. 

The central issues will be whether it is possible for an international organisation to make decisions on Community issues, and whether the UPLS will be able to refer problematic issues to the ECJ as is currently foreseen. 

Ministers will ask the ECJ to consider the matter before the summer, although it may take 18 months to give its opinion. Nonetheless, the compromise is seen as a major milestone on the road to establishing a single legal system for European patents. 

The economic aspects of how the court will function have been discussed on the basis of an expert study highlighting the cost savings for businesses of a unified patent litigation system and recommending that the EU proceeds with its establishment. The Council will also consider a Czech Presidency report on ongoing negotiations aimed at establishing a Community patent. 

In recent months, discussions in the Council’s preparatory bodies have concentrated on possible cooperation arrangements between patent offices in Europe based on enhanced partnerships, and on the economic benefits of a Community patent on the basis of an expert study highlighting its potential to foster innovation, in particular for SMEs and universities. 

Political moves to develop a Community patent for the EU began in March 2003, but progress has been hampered by repeated technical and legal difficulties. The issue was resurrected under the French Presidency last year, and it had originally been hoped that patent issues might form part of the Small Business Act

However, differences over sensitive translation arrangements have proven insurmountable, and a French proposal fell foul of "political obstacles", despite broad agreement that reform is urgently required (EURACTIV 2/12/08). 

Earlier this year, the Czech EU Presidency said it would seek to advance the issue, and Sweden has indicated that it will make the creation of a single patent a priority issue for its six-month term at the EU's helm, which begins in July (EURACTIV 6/3/09). 

In March, the European Commission said it would seek powers from EU member states to conclude an agreement on a unified patent litigation system, which would establish a court with jurisdiction for existing European patents and the future community patent system (EURACTIV 25/3/09). 

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