Parliament gives final nod to EU patent

European patent.jpg

The European Union took a step closer to an EU-wide patent yesterday (11 December) with lawmakers voting to cut the cost of protecting inventions and a top advisor to Europe's highest court rejecting a challenge to the new scheme.




Twenty-five of the EU's 27 industry ministers agreed on Monday to allow inventors to register their idea with one EU agency, signing off on a project first put forward in 1973 but which was delayed by a series of disputes, including over where to site the new patent office.

The European Parliament voted yesterday in favour of the plan which will see a common patent in place on 1 January 2014, if the judges in the highest EU court dismiss objections by Spain and Italy when they make a definitive ruling next year.

At a time when competition in new inventions is increasing, not only from Silicon Valley but also from Asia, a single patent is seen as encouraging innovation.

"A common European patent is key to strengthening Europe's competitiveness in a globalised world," said Swedish liberal lawmaker Cecilia Wikström. "We must be able to compete with the US, Japan and other developed countries when it comes to commercialising innovations," she said.

The current system makes the process 18 times more expensive than in the United States and 60 times more than in China, because patents have to be registered separately in individual EU countries – up to 27 times to cover the whole European Union.

Spain and Italy have so far refused to back the deal because the new regime stipulates the official languages for patents as English, French and German, so it will apply to 25 rather than 27 EU states initially.

Court official rejects language objections

But in Luxembourg, Yves Bot, an advocate general in the European Court of Justice, rejected their argument against the scheme in a non-binding opinion on Tuesday.

He said the judges, who are expected to rule next year, should reject the objections of Spain and Italy.

While they are not required to agree with Bot, the ECJ's judges often follow the recommendations of the court's advocates general.

An EU patent, which will still cost more than double the US level at about €5,000 on average, will not revolutionise innovation in Europe overnight.

But the reform is good for business at a time when Americans obtained four times as many patents as Europeans did in 2011.

Internal Market and Services Commissioner Michel Barnier welcomed the parliamentary vote, saying : “The figures speak for themselves. In the United States, in 2011, 224 000 patents were granted, in China 172 000 while here in Europe only 62 000 European patents were delivered. One of the reasons for this difference is without a doubt the prohibitive cost and the complexity of obtaining patent protection throughout the single market. The new texts adopted open the way to simplified procedures and a reduction by one-seventh in the costs for our businesses of protecting their innovations in 25 EU countries. I hope that Spain and Italy will join this new regime as soon as possible, so that this protection will be valid in all 27 member states.”

Commission Vice President Maroš Šef?ovi? said that the breakthrough on the EU patent would be the major achievement of the Cypriot presidency, which ends on 31 December.

Eurochambres, the Association of European Chambers of Commerce and Industry represents over 20 million enterprises in Europe, greeted the “historic vote”.

“Today’s agreement on the patent package is an encouraging sign that member states are resisting the temptation to focus on domestic interests in these difficult economic times.  We welcome this breakthrough that will significantly reduce administrative burdens and boost European innovation.”

The group of Socialists and Democrats welcomed the vote of the new regulation, drafted by S&D Group Vice President Bernhard Rapkay, on establishing an EU patent system.

"Today's vote is good news for the European economy and especially for European small- and medium-sized enterprises . The new EU patent will boost innovation and bring them relief in a time of economic crisis".

Centre-right European People’s Party MEPs also welcomed the vote. "In order to reduce legal complexity and costs, businesses tend to validate European patents in only a few Member States, thus leading to a fragmentation of the Single Market. The European Patent with unitary effect will broaden patent protection to all participating Member States. This will increase business opportunities while opening up markets and contributing to the fulfilment of a true single market", said MEP Raffaele Baldassarre (EPP, Italy).

MEP Klaus-Heiner Lehne (EPP, Germany) said: "Under the current system, European inventors cannot enjoy the full benefits of the Single Market when seeking patent protection. This has a negative impact on the competitiveness of the Union as innovation-related activities generate human capital that tends to be more mobile than in other areas. The new system will help make the Union a more attractive place to create and innovate, for both European and non-European inventors."

MEP Andrew Duff (ALDE, UK), who represents the important cluster of science research in the East of England, said: "Today sees a huge break-through for European innovation and competitiveness. The final agreement on a unitary patent will greatly reduce red tape and costs for businesses across Europe.

"The judicial system is complicated by the fact that two states have not joined in on the grounds of linguistic envy. But the ultimate authority of the European Court of Justice is assured, and we can expect the gradual growth of case-law which will build confidence in the unitary system.

"Those who fear that software developments will now be clobbered by excessive patenting by large firms can be reassured: software remains within the realm of copyright law."

Lib Dem MEP for London, Sarah Ludford, added: “Finally, following almost 40 years of negotiations a single EU patent has arrived. This is a really important historic achievement - though none too soon - that will reduce costs by up to 80%, improving the competitive position of UK businesses in relation to the US and Japan, where patents are substantially cheaper.

"The fact that the 'Life Sciences' section of the future EU patent court will be located in London is a great tribute to the capital's leadership in chemical and medical research. The new law will make EU-wide patents easier and cheaper to obtain for eventual commercial application arising from work in this field.”

The Greens/EFA group had raised concerns about the legality of the proposal, as well as the decision to grant wide-ranging intellectual property powers to a non-EU institution, the European Patent Office and Court. The group hit out at the vote, with Green legal affairs spokesperson MEP Eva Lichtenberger (Austria) said: "In their haste to force through this ill-conceived legislation, MEPs from the larger political groups have ignored the legal uncertainty with the proposals. On top of uncertainty about the legal soundness of the proposals, there are major concerns with these far-reaching plans for intellectual property enforcement in Europe. In effect, the EU institutions are abdicating powers on intellectual property to a non-EU organisation: the European Patent Office and Court. This is clearly a negative development for EU citizens."

The vote was welcomed by MEP Sajjad Karim (ECR, UK) who negotiated the package on behalf of the Conservative group. He called it "a major advance for the intellectual-property rights of inventors, scientists and others at the cutting edge of technology."

"In fact the deal secured strengthens the UK's role in the legal framework. Rather than eroding sovereignty, the measures guarantee that UK businesses will not have to litigate all across Europe but under a single court system which uses English as one of its main languages.

"Because of that we were able to secure the location in Britain of one of the key divisions of the unitary court system and that will provide important jobs for the UK's widely-respected legal-services profession and associated services."

Garlich von Essen, secretary-general of the European Seed Association, said:

“This is a true milestone in our quest for clarification of the interface between patents and plant breeders’ rights.

“For plant breeders, the main issue in the discussion of the EU patent is the so-called 'breeders’ exemption'. It allows the use of patent protected biological material for further breeding without any obligations towards the patent holder; however, should the newly bred variety still contain the patented invention of another breeder, a licence is needed for its commercialisation.

“This is the cornerstone of plant breeding in Europe and of the ESA Position for IP protection for plant-related inventions: access to all plant genetic material for further breeding, and thus maximum support for further innovation, while safeguarding the rights and return of investment for the original patent holder when it comes to the commercial exploitation of the newly bred variety that carries his patented invention.”, von Essen said.

Efforts to create a common patent applicable across all European countries have been made since the 1960s but for a number of reasons have never been successful.

Currently, getting a patent protected in each of the EU countries costs on average €32,000, while with the new EU system the expected costs will be less than €1,000 – compared to the €1,800 it costs in the US.

On 11 March 2011, ministers from 25 member states decided to go ahead with plans to introduce a common system for registering patents, without Spain and Italy, which opposed the proposed language regime.

The Italians and Spanish were afraid that such an approach would give an unfair advantage to companies based in France, Germany and the United Kingdom since French, German and English were the three official languages chosen for the regime.

  • 2013: Signature of the international agreement on the Unified Patent Court (UPC)  
  • April 2014: The first unitary patents to be granted.

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