The prospects for a single, European Union-wide patent regime appear to be dimming, as industry groups representing some of the most innovative companies active in Europe are urging the European Commission to abandon its promise earlier this year to make “one final push” to adopt the so-called Community patent.
The Community patent promises inventors a cheaper way of registering their inventions across the Union, and more legal certainty for their patents. It is seen as a vital instrument to boost the Union’s competitiveness with trading partners such as the United States and Japan.
It has been the aim of forward-looking politicians in Europe for over three decades, but disputes over what language patent applications should be translated into have prevented progress.
In January the Commission, the Union’s executive body, announced it was making one last effort to break the deadlock. It opened a consultation process with industry and other interested organizations and individuals, which concludes in less than two weeks with a hearing in Brussels.
But far from receiving support from industry, which has most to gain from the Community patent, three of the most influential industry lobby groups have advised the Commission to drop the initiative for now, and instead improve the existing patent regime run by the European Patent Office in Munich, Germany.
Some fear a lobbying nightmare similar to the one they experienced last year when European politicians tried to pass a law on the patentability of software-related inventions.
That debate was won by anti-software patent groups, who successfully convinced the European Parliament that the proposed law would stifle innovation by creating a legal minefield for software developers.
“To start a debate about the Community patent now would be like opening a Pandora’s box,” said Francisco Mingorance, a European policy expert with the Business Software Alliance, an industry group that represents some of the largest technology companies in the world, including Microsoft Corp..
“Looking at the debacle over the proposed law on computer-implemented inventions, a lot of companies fear this could happen all over again but on an even broader scale in a debate about the Community patent,” Mingorance said.
Similarly, the International Chamber of Commerce, a grouping of large companies from around the world, including Air Liquide of France, General Electric of the United States and GlaxoSmithkline based in the U.K., has urged the commission to back off from the Community patent project.
“A revisiting of substantive patent law in the context of the Community patent is not warranted,” it said in its submission to the Commission’s consultation.
Others believe any compromise that suits all 25 countries in the Union would be a bad foundation for the Community patent. An agreement requires unanimous support from all the member states.
“No Community patent would be better than a bad Community patent,” said Ilias Konteas, an advisor on intellectual property matters at UNICE, the federation of European employers, which represents most of the large companies in Europe.
In 2001, the Commission proposed a text for a law that would allow for the creation of a Community patent. It was hailed by many in industry as an enlightened piece of draft legislation, but it was changed substantially by national governments.
The Commission proposed that patents should be drafted in only three languages, rather than the 20 official languages of the Union. This would have slashed the cost of getting patent protection across the Union. But the national governments scrapped the idea and returned to all official languages.
“The Community patent redrafted by the member states is not acceptable to us,” Konteas said.
UNICE, the BSA and the International Chamber of Commerce all urge the Commission to pursue two less ambitious courses of action being pushed by the European Patent Office. The first, dubbed the London Protocol, attempts to overcome the burden of translation costs.
It would excuse countries with English, German or French as their official language from having to translate patents at all. Other countries would have to issue their patents in the local language, plus either English, French or German. So far France has failed to ratify this agreement, effectively blocking it.
A separate pact called the European Patent Litigation Agreement attempts to create one legal system for all 31 countries that are members of the European Patent Office. It too has yet to be ratified.
“If we see progress on these two issues this will be a big improvement in the way the system works – a major step forward,” Konteas said.
The European Commission supports the two initiatives pushed by the EPO. It views them as a useful step towards the creation of a Community patent.
At the beginning of this year Charlie McCreevy, the European commissioner in charge of the internal market, promised that he would not pass the Community patent initiative onto his successor, as so many previous internal market commissioners have done.
At a committee meeting in the European Parliament last week he admitted defeat on the software patent initiative last year, saying he would leave that dossier for his successor. But he vowed to push ahead with the Community patent project.
“Recognizing the economic importance of patents, I felt it was not a good thing to leave the entire patent agenda in limbo,” he said, explaining why he embarked on his “final push” for the Community patent.
But showing the pragmatism he is renowned for, McCreevy left open the possibility of dropping the Community patent, and instead focusing on the two initiatives being pushed by the EPO.
“One thing is certain, progress in the patent field has to be made. Businessmen, faced with a 21st century global economy, scratch their heads in disbelief when they see us stuck in discussions about language regimes and regional distribution of courts,” he told members of the European Parliament.
“What they want is a cheaper and reliable patent system. That’s why I think we should look at all possible routes forward, be they Community or non-Community initiatives,” he added.
