Belgian Presidency to test compromise on EU patent

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The Belgian EU Presidency will put a non-paper on the table at today's informal Competitiveness Council aimed at breaking the deadlock over proposals for a single EU-wide patent system, which has been blocked for over a decade over language issues.

The paper circulated among diplomatic delegations in Brussels and seen by EURACTIV maintains the substance of proposals put forward by EU Internal Market Commissioner Michel Barnier.

According to the compromise proposal, English, French and German would remain the official languages for filing EU patents. Other EU languages are not taken into consideration, and no suggestion is made to move towards a permanent monolingual regime, where English would be the only official language.

Spain and Italy have been the most vocal critics of Barnier's proposal, advocating either a multilingual or monolingual regime, but not one based exclusively on the EU's three working languages.

The compromise text proposed by the Belgian Presidency tries to please Spain and Italy by conceding that English would be the only language into which patents are translated.

But this would be done "only for a transitional period" until the performances of translation machines have reached a sufficient level, reads the compromise text. At that moment, patents would be translated into all EU languages from the three recognised official languages, as foreseen by Barnier.

Moreover, "this translation would be for information purposes only and would have no legal effect," says the non-paper.

The compromise text, however, leaves untouched the privileges granted to French and German introduced by Barnier.

Indeed, under the Belgian draft plan, French and German applicants would remain able to file patents in their own language, while other Europeans would need to translate their applications into English, French or German.

Spanish alternative proposal

Two weeks ago, Spain presented an alternative plan which differed from Barnier's proposal and went further than the Belgian compromise text.

Madrid supported the idea of a semi-monolingual regime based on English as the only official language into which patents have to be translated. Under this proposal, applicants could also choose to file their patents in a second EU official language. The privileged status of French and German would therefore fade away.

Paris and Berlin oppose this idea and stress that the current system managed by the European Patent Office (EPO) is in fact based on English, French and German as official languages.

They also use the arguments that the EPO is based in Munich and Germany is also by far the leading country in the EU in terms of number of patents filed.

In 2009, 18.7% of total EPO patent applications came from Germany, according to EPO figures. France is second, with a share of 6.6%, followed by the Netherlands, the UK and Italy.

Four German companies were among the top ten EU applicants in 2009. They are engineering companies Siemens and Bosh, pharmaceutical giant Bayer and chemical group BASF.

Towards 'enhanced cooperation' for patents?

The battle for the linguistic regime of the EU patent system is a genuine political conflict where national standings are at stake. At the same time, the absence of a deal on the matter would condemn Europe to keep lagging behind at global level on the number of patents filed, losing its competitiveness to emerging powers like China.

Tonight's informal Competitiveness Council will not have the last word on this complicated issue. Even in the best-case scenario, the Belgian Presidency will only be able to mark a step forward in December when an official Competitiveness Council is scheduled.

To get things moving, the Commission is also waving the spectre of enhanced cooperation, a special procedure which allows a group of at least nine countries to move ahead, leaving others the freedom to join later.

"Barnier is likely to use the Council of tonight to test the field for enhanced cooperation on the EU patent," said an industry source in Brussels.

"We are looking for a compromise solution which would be agreed by all 27 member states. A fragmented market for patents is in the interest of nobody," replicated a source from the Belgian Presidency.

Barnier's spokesperson conceded that the Belgian proposal contained "new elements for a compromise" and ruled out the presidency using the threat of enhanced cooperation, "at least in this Council".

Positions

Background

Moves to develop a Community patent for the EU began in 2003. Progress has been hampered by repeated linguistic, technical and legal difficulties.

The cost of filing and protecting patents in Europe is substantially higher than in the US and Japan, and business organisations have consistently complained about the fragmented and inconsistent decisions handed down by European courts. 

Companies often have to fight legal actions in several European countries at once, and national courts regularly come to conflicting conclusions on identical cases. A single patent court will make litigation cheaper and more predictable, according to the plans.

The Commission presented in July a proposal to end the deadlock on linguistic disputes. The EU commissioner in charge of the dossier, Michel Barnier, proposed to maintain English, French and German as official languages for a EU patent, instead of translating it into all official EU languages (EURACTIV 02/07/10).

Under this proposal, applicants will be able to file a patent in their own language, but will have to have it translated into one of the three official languages. "The costs for the translation will be eligible for reimbursement," reads the Commission proposal.

Timeline

  • 29-30 Sept. 2010: Informal EU Competitiveness Council.
  • 11 Oct. 2010: EU Competitiveness Council.
  • 10 Dec. 2010: EU Competitiveness Council.

Further Reading

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