The European Commission has proposed a compromise on Europe-wide patents that represents a significant shift away from its former policies.
Internal Markets Commissioner Charlie McCreevy has called the move his one attempt at creating EU-wide patents, and has backed down on previous Commission hard lines on how litigation should be conducted.
The proposal seeks a compromise between the Commission's Community Patent, with its own courts system, and the European Patent Office-proposed European Patent Litigation Agreement (EPLA).
According to one patents expert, McCreevy has effectively said that he is prepared to accept the EPLA as a litigation system. "It seems to be, well, we can't beat them, then we'll join them and get the litigation arrangements we need for the Community Patent through the mechanisms that are already established by the EPLA," John Gray, a patent attorney at Murgitroyd & Company, told weekly technology law podcast OUT-LAW Radio.
"I think the Commission is saying 'we haven't found another way to do it'. I think the competing national interests and sensitivities since 1975 have comprehensively defeated any Commission effort to create its own ideal Community Patents system," he said.
The EPO operates outside of the government structure of Brussels, and is a creation of the European Patent Convention. It already has an office which grants patents which can become Europe-wide, and it has a proposal for a litigation structure, the EPLA.
"Recent discussions with Member States show polarised positions on patent jurisdiction arrangements with, on the one hand, Member States supporting the draft EPLA in the context of the European Patent Convention, and, on the other hand, Member States favouring the establishment of a specific Community jurisdiction for patent litigation on European and Community patents based on the EC Treaty," said a Commission statement.
"Under these circumstances, the Commission believes that consensus could be built on the basis of an integrated approach which combines elements of both EPLA and a Community jurisdiction."
The two big problems faced by any attempt to harmonise patent law are the costs of translation and the difficulties in setting up a legal framework to deal with litigation. On litigation, McCreevy moved towards the EPLA model.
"[A single court system] could be achieved by creating a unified and specialised patent judiciary with competence for litigation on European patents and future Community patents," said the McCreevy's Communication on the subject. "Such a judicial system could be strongly inspired by the EPLA model, in particular as regards the specificities of patent litigation, but could allow for harmonious integration in the Community jurisdiction."
There is less agreement on how to deal with the translation issue. Translation is vital because of the contract that a patent represents between a company and the public. "A patent is a technical and legal document and when it's granted to you it gives you the right to prevent somebody making some machine or using some process that's covered by your patent," said Gray.
"The justification for granting patents is that the patent specification contains a teaching of how to do the thing and it's in return for disclosing how you do your process, how you make your machine that you get granted this monopoly for a limited time, so somebody in a country whose language isn't one of these official languages doesn't get the benefit so much," said Gray. "They don't get the benefit of the teaching that's in the document, and they may even get the downside of infringing a patent that isn't written in their language."
McCreevy said that he would use the Communication to attempt to solve the problem of EU-wide patents once and for all. "Our 2006 stakeholder consultation showed that the EU simply must deliver, in particular on the Community patent and sound litigation arrangements, because in today's increasingly competitive global economy Europe cannot afford to lose ground in an area as crucial as patent policy," he said. "That is why I propose to have a fresh look at the various options and to work with the Council and the Parliament towards political consensus on real improvement of the patent system."