Current Politics of the Community Patent

According to the "Preliminary findings: issues for debate" published by the European Commission in the lead up to their public hearing on July 12, 2006 for their Consultation on future patent policy in Europe:

Industry (big and small), as well as other interest groups, generally support the Community Patent as a way of addressing problems of the patent system. A limited number of stakeholders reject the Community Patent outright and in whatever form, giving preference to the EPLA as a response to patent problems in Europe.

The most radical approach was shown by the German Patent Attorneys who dismiss the EU Community Patent as proposed with the common political approach, and ask the Commission to withdraw that proposal. In particular, the Institute of German Patent Attorneys is unhappy with the litigation arrangements proposed for the EU Community Patent, as it foresees just one centralised court. Also the language regulation under the Community Patent is considered to be inadequate.

However, stakeholders unequivocally reject the deal currently on the table – the 2003 Common Political Approach. The rejection is caused by mainly two aspects: an unsatisfactory language regime and inadequate jurisdictional arrangements. There are two extremes in the language regime preferences: those who unequivocally support a single language patent and those who want full translations into all official EU languages immediately upon grant.

The language regime currently proposed is rejected by those who advocate a simplified (preferably a single language) regime and by supporters of a multilingual arrangement alike. Opinion divides according to the size of the responding company although there is division within the SME community itself, Eurochambers opting for English-only as the preferred solution, whereas other SME's claim multiple language regime.

Patent lawyers tend to agree with those of SME's who want multilingual arrangements. A division also appears on the national basis: countries such as Portugal, Spain, Italy, Greece, Poland and some stakeholders in France advocate
a multilingual regime based on arguments of access to information which must be
granted in the language of their citizens. For industry, whatever the regime finally adopted, it must offer a unitary, affordable and competitive patent ensuring legal certainty through a unified Community jurisdiction, which the current proposal does not do because the unitary character of the patent is abrogated by universal translation requirements and legally binding claims in different languages.

A compromise solution is put forward by FICPI: the Community Patent does not have to cover all the Member States provided that it has a unitary character in those it does cover. This would imply the use of the existing EPO structures for patent grant and the transformation of a European Patent covering some or all of the EU Member States into a Community Patent. A patent would be granted in centralised proceedings at the EPO based on substantive patent law as laid out in the EPC; litigation initiated and conducted in the language of the defendant or of the court designated according to Brussels Regulation choice of court rules, using the existing structures such as those designed for the CTM with the final referral to the ECJ (and preferably to a specialised IP chamber).

Other stakeholders recommend putting the initial Commission proposal back on the table for negotiations. It is evident however, that the industry is not interested in a Community patent which does not offer advantages over the existing system of bundled European patents. Beside the language regime, another necessary characteristic of a Community Patent system put forward by a large majority of respondents is that judges must have solid legal and technical experience. Clear procedural rules are absolutely vital.

Vodafone, and other stakeholders from this sector, is concerned that availability of a Community Patent on the market would raise costs by raising the number of patents granted (without improvement of quality) thus multiplying the costs of examinations. Secondly, risk of infringement would cover all of Europe making risk assessment considerably more difficult. This concern might in fact limit the number of patent applications where the potential patentee is not sure about the "strength" of his invention and the subsequent patent. However, lowering cost might have an adverse effect by attracting more patent applications leading to more workload and possibly to more "weak" patents being granted thus endangering innovation.

Vodafone states that any COMPAT proposal must guarantee confidence in granted patents, and this can be achieved by raising the search and examination quality (by raising test levels – so costs increase), by placing more responsibility on the applicant to disclose prior art (e.g. as in the US the information disclosure statements) and finally setting up a Community IP Court. These proposals are not specific to COMPAT but apply to any jurisdiction proposal.