Prospects fading for single European patent regime

The prospects for a single, European Union-wide patent regimeappear to be dimming, as industry groups representing some of themost innovative companies active in Europe are urging the EuropeanCommission to abandon its promise earlier this year to make “onefinal push” to adopt the so-called Community patent.

The Community patent promises inventors a cheaper way ofregistering their inventions across the Union, and more legalcertainty for their patents. It is seen as a vital instrument toboost the Union’s competitiveness with trading partners such as theUnited States and Japan.

It has been the aim of forward-looking politicians in Europe forover three decades, but disputes over what language patentapplications should be translated into have preventedprogress.

In January the Commission, the Union’s executive body, announced itwas making one last effort to break the deadlock. It opened aconsultation process with industry and other interestedorganizations and individuals, which concludes in less than twoweeks with a hearing in Brussels.

But far from receiving support from industry, which has most togain from the Community patent, three of the most influentialindustry lobby groups have advised the Commission to drop theinitiative for now, and instead improve the existing patent regimerun by the European Patent Office in Munich, Germany.

Some fear a lobbying nightmare similar to the one they experiencedlast year when European politicians tried to pass a law on thepatentability of software-related inventions.

That debate was won by anti-software patent groups, whosuccessfully convinced the European Parliament that the proposedlaw would stifle innovation by creating a legal minefield forsoftware developers.

“To start a debate about the Community patent now would be likeopening a Pandora’s box,” said Francisco Mingorance, a Europeanpolicy expert with the Business Software Alliance, an industrygroup that represents some of the largest technology companies inthe world, including Microsoft Corp.

“Looking at the debacle over the proposed law oncomputer-implemented inventions, a lot of companies fear this couldhappen all over again but on an even broader scale in a debateabout the Community patent,” Mingorance said.

Similarly, the International Chamber of Commerce, a grouping oflarge companies from around the world, including Air Liquide ofFrance, General Electric of the United States and GlaxoSmithklinebased in the U.K., has urged the commission to back off from theCommunity patent project.

“A revisiting of substantive patent law in the context of theCommunity patent is not warranted,” it said in its submission tothe Commission’s consultation.

Others believe any compromise that suits all 25 countries in theUnion would be a bad foundation for the Community patent. Anagreement requires unanimous support from all the memberstates.

“No Community patent would be better than a bad Community patent,”said Ilias Konteas, an advisor on intellectual property matters atUNICE, the federation of European employers, which represents mostof the large companies in Europe.

In 2001, the Commission proposed a text for a law that would allowfor the creation of a Community patent. It was hailed by many inindustry as an enlightened piece of draft legislation, but it waschanged substantially by national governments.

The Commission proposed that patents should be drafted in onlythree languages, rather than the 20 official languages of theUnion. This would have slashed the cost of getting patentprotection across the Union. But the national governments scrappedthe idea and returned to all official languages.

“The Community patent redrafted by the member states is notacceptable to us,” Konteas said.

UNICE, the BSA and the International Chamber of Commerce all urgethe Commission to pursue two less ambitious courses of action beingpushed by the European Patent Office. The first, dubbed the LondonProtocol, attempts to overcome the burden of translationcosts.

It would excuse countries with English, German or French as theirofficial language from having to translate patents at all. Othercountries would have to issue their patents in the local language,plus either English, French or German. So far France has failed toratify this agreement, effectively blocking it.

A separate pact called the European Patent Litigation Agreementattempts to create one legal system for all 31 countries that aremembers of the European Patent Office. It too has yet to beratified.

“If we see progress on these two issues this will be a bigimprovement in the way the system works – a major step forward,”Konteas said.

The European Commission supports the two initiatives pushed by theEPO. It views them as a useful step towards the creation of aCommunity patent.

At the beginning of this year Charlie McCreevy, the Europeancommissioner in charge of the internal market, promised that hewould 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 headmitted defeat on the software patent initiative last year, sayinghe would leave that dossier for his successor. But he vowed to pushahead with the Community patent project.

“Recognizing the economic importance of patents, I felt it was nota good thing to leave the entire patent agenda in limbo,” he said,explaining why he embarked on his “final push” for the Communitypatent.

But showing the pragmatism he is renowned for, McCreevy left openthe possibility of dropping the Community patent, and insteadfocusing 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, scratchtheir heads in disbelief when they see us stuck in discussionsabout language regimes and regional distribution of courts,” hetold members of the European Parliament.

“What they want is a cheaper and reliable patent system. That’s whyI think we should look at all possible routes forward, be theyCommunity or non-Community initiatives,” he added.

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