Brussels, 14/12/2010 (Agence Europe) - As we previously reported, the European Commission, on 14 December, presented a proposal opening the way for “enhanced cooperation” - only the second in EU history - to create unitary patent protection in the EU. This proposal now has to be approved by the EU Council of Ministers, by qualified majority, after the consent of the European Parliament so that the Commission can bring forward detailed proposals in 2011 for implementing enhanced cooperation for unitary patent protection, including translation requirements and an assessment of their impact. Enhanced cooperation thus decided will allow those member states which wish to press on with putting in place a patent that is valid in all the states which are part of the system that can be obtained with a single application no matter in which country the companies are established.
The main stumbling block to this initiative, which has been on the table for more than 10 years, was the issue of language regime for the translation of the patent. Spain and, more particularly, Italy, while recognising the need for a European patent, were fiercely opposed to an agreement, arguing that the three-language (English, French and German) regime proposed was discriminatory.
The enhanced cooperation called for by 11 member states and agreed to by the Commission appeared, then, at the Competitiveness Council last Friday (see EUROPE 10275) as the only way to break the deadlock, allowing those states which wished to push on. Any further blockage would have further undermined the confidence of those filing for patents at a time when European companies are in need of some sign of optimism.
As Commissioner Barnier stated: “European inventors can afford no further delay” - the system in place in the EU is excessively costly and complex. To file for a patent, inventors and companies must apply member state by member state and in the corresponding language. A European Patent validated in only 13 member states can cost up to €18,000, nearly €10,000 of which is from translation fees alone, 10 times more than a US patent, which costs on average €1,850. Thus, only the biggest companies or the richest individuals can afford to file for patents in several countries. The result is that, on average, innovators validate and protect their patents in only five of the EU's 27 member states, largely because of the high costs involved. They thus leave themselves open to the risk of imitation or falsification, even within the EU. In addition, their competitiveness is affected at a time when the crisis is forcing cost-reduction and innovation.
Enhanced cooperation only commits those member states which are involved. However, it keeps the door open for all the others, who will be able to take part in discussion in the Council, though without any right of vote. More importantly, however, as the commissioner said: “Companies will not be discriminated against and will be able to apply for an EU Patent under equal conditions, no matter what their countries of origin”. The advantages of a unitary patent will, therefore, be the same for all inventors and all innovating companies in the EU in terms both of rationalisation of procedures and of reduction of translation costs.
Furthermore, with regard to translation requirements, following negotiations led by the Belgian Presidency, the Commission's detailed proposal will build on the existing language regime of the European Patent Office (EPO) at competitive costs. The unitary patent will be examined and granted in one of the existing official languages of the EPO - English, French or German - within the option of translation into other languages in the event of disputes. Applications for patents by speakers of languages other than the three previously mentioned will be able to file their application in one of the other official languages of the EU. The cost of translation into one of the three languages mentioned will be reimbursed. These additional translation requirements, the commissioner said, will last only until such time as high performance automatic translation systems are put in place.
Implementation of these measures should see translation costs tumble by two thirds, bringing the cost of the patent to between €5,000 and €6,000. (F.G./transl.rt)