EU patents to arrive in two years

Last December, the Council of Ministers of the EU finally reached agreement on the chief elements of a European patent and a common European patent court.

Soon afterward, the newly appointed European Commissioner for the Internal Market, Michel Barnier, revealed that the Commission is planning to propose a solution to the crippling issue of language, which has long been the biggest hurdle facing an EU-wide patent system.

“In the best case, the Council might reach a final agreement as soon as the end of this year,” said Alexander Ramsay, Deputy Director of the Department of Justice. “But more realistically, we will certainly reach a final agreement within two years.”

So what still needs to be accomplished before we see a fully functional EU-wide patent and patent court? Currently, there is a European (not to be confused with EU) Patent Convention with 34 participating states. The European Patent Office (EPO) handles European patent applications, but as soon as the patents have been approved, they are converted into national patents.

As a result, the patent has to be translated into many languages, and any disputes must be handled in their respective courts – which makes the entire process expensive, cumbersome, and difficult to oversee.

The next obstacle on the road to a functional EU-wide patent is now the European Parliament, which must weigh in on the issue.

As if that weren’t complicated enough, the question is divided into two parts: questions regarding annual fees and the patent office itself will go through the Parliament, while the language issue – i.e. into which languages patents should be translated – has to be agreed to unanimously by the Council of Ministers after only consulting the Parliament, under EU rules. In other words, the situation is primed for horse-trading and back-door deals.

“We’re still very optimistic that we’ll find a solution to the language issue that’s acceptable to all Member States and to business,” Ramsay said.

The gist of the proposal is that translating the patent to one of the official EPO languages – German, French, or English – would be sufficient. But Spain in particular has had difficulty accepting that a language as prominent as Spanish is not included. Today, translation costs an average of 40,000 kronor (4,000 Euro) per patent.

“Language issues in the EU are politically sensitive at every level. At the same time, we’re all conscious of the fact that having as few languages as possible involved in the patent process will be better for businesses. Patent applicants are paying an intolerable amount of money today," said Ramsay.

Even if the Council of Ministers reaches a resolution on the language issue, and the European Parliament solves the other issues, it remains to be determined how a court will manage patent cases.

The next step is for the European Court of Justice to declare whether the proposal for a common patent court is in agreement with EU treaties, which are comparable to constitutional laws.

According to Ramsay, the EU Court’s opinion will hopefully come as soon as this summer; then, negotiations can resume about how the court should be assembled and how it should work in practice. The proposed new patent court would adjudicate EU patents as well as existing European patents, and non-EU countries would be able to use it to handle patent disputes through special agreements.

“I hope we will be able to reach a final agreement within two years," said Ramsay.