EU looks to Rome, Madrid for patent deal

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The Belgian EU Presidency will try to narrow the distance between national delegations on the long-standing issue of languages and translations during a meeting of EU ministers starting today (11 October) in Luxembourg.

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.

"As an Italian, I would prefer that my language and Spanish as well were considered official languages for the EU patent, but the priority in this case is not to waste further time and to find an agreement," said EU IndustryCommissioner Antonio Tajani.

"It is now time for member states to act and reach a final decisions on this long lasting issue in order to reinforce Europe’s position in the global knowledge economy," commented Philippe De Buck, director- general of BusinessEurope, the federation of EU industry associations.

Moves to develop a single patenting system for the EU began in 2003 but progress has been hampered by 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 would make litigation cheaper and more predictable.

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 filing an EU patent (EURACTIV 2/7/10).

The Belgian Presidency has said overcoming legal and linguistic problems will be a top priority during its six months at the helm of the European Council (EURACTIV 24/6/10).

  • 26 Nov. 2010: EU Competitiveness Council.
  • 10 Dec. 2010: EU Competitiveness Council.

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