In other words European patent still walking on one leg

After thirty years of procrastination, it was time that the draft single European patent is a way out. Because Europe is the only large world economic area where companies are not a system of protection of industrial property which is unified. The interest is essential competitiveness of innovative companies: simplification of filing procedures and lower costs

Even if is hoped unanimous agreement, which has encountered on the question of the language regime of the future patent, a decisive step is finally crossed since December 10. At the competitiveness Council, the France and its main European partners have proposed the establishment of enhanced cooperation, as authorized by the Treaty of Lisbon to unblock such a situation, to speed up the creation of the patent of the European Union. "It is passed a theoretical hypothesis in a clearly political process around a reinforced cooperation adhered by 12 Member States, including the France, the Germany and Britain", confirms Benoît Battistelli, President of the European Office of patents (EPO), based in Munich.

"The aim now is to implement the single patent project current 2011 in countries engaged in this process, in accordance with the proposal of the European Commission, which has been the subject of broad agreement under the Belgian Presidency." This project is based on the language regime in force at the EPO, the three official languages are English, German and French. "In this compromise, the procedure will be the same that the plaintiff wants a current certificate or the European Union.". "It is at the end of the process that the applicant will make its choice," says Benoît Battistelli. Ideally, this new European industrial property title should have been automatically valid in all 27 Member States. In fact, "not considered that the territories of the countries participating in enhanced cooperation on a voluntary basis as a single territory", he said. Either 12 States to date. Three other countries have expressed their interest: the Austria, the Belgium and the Ireland.

Act on costs

What will be more attractive than the European patent granted for thirty years by the EPO Currently, must be that the holder of the patent refers to the country in which he wants to protect his innovation with technology and business strategy. In addition to the cost of the issue, he must pay the annuities in each of the countries where it has decided to protect the invention in question, without counting the cost of translation. This is the reason for which a European patent is now validated average in seven or eight European countries.

So the companies quickly adhere to the principle of the future patent of the European Union, "need that the cost of licensing is equivalent." "The problem is more complex at the level of the annuities because will need to set a reasonable level for the single patent is accessible, including for SMEs and research centres," said the President of the EPO.

"It is expected to soon discuss between the European Commission, representatives of the Member States and the European Patent Office, he said." In my opinion, it is desirable that it be of the same order as the average cost of the current European patent covering on average seven or eight countries. Give a true choice to the applicant, to the costs of the two patents are comparable.

Common court

Beyond the thorny language issue (see below) is another major issue: the creation of a European Court to be competent, in case of dispute on a patent for the whole of the European territory. "The subject remains high priority, because we are in a configuration with a licensing system centralized in the EPO, but a national court in each country, says Benoît Battistelli unbalanced." If a patent is challenged, this new instance may confirm or invalidate this patent by a single judgment which will apply to all countries.

Finalized, this project, which was the subject of many discussions expected the opinion of the European Court of justice, which is expected to decide soon on its compatibility with the community legal framework. That is what will change Today, in challenge of a European patent, the holder must defend to national courts in all countries where the title of industrial property is validated. Hence a loss of time and considerable money, with a non-negligible risk of divergence between the different national judgments.

"A Spanish or Bulgarian SMEs to defend themselves in the same way, it stipulated that there is a central instance and rooms in the different countries that will enable to judge at first instance the patent in question before making a final decision, said President of the EPO." Must be understood that it is a big legal step because, until now, the community courts are competent to judge disputes between States or between the Commission and a Member State. This is the first time that it creates a Community Court will be competent to try a conflict between individuals.

If this point is already essential for the current system, it will be essential to ensure the effectiveness of the future patent of the European Union. "In the meantime, the situation is not very comfortable, because on a unity with the issuance, centralized by the EPO, but there is no unit at the level of litigation," concludes Benoît Battistelli. In other words, European patent still walking on one leg.