Brussels, 19/12/2001 (Agence Europe) - Urgently convened by the European Council of Laeken, the Internal Market Council to be held on Thursday in Brussels under the chairmanship of Charles Piqué, has a clear mission: to bring the Community patent issue out of deadlock. A tricky and difficult mission also, especially for the Belgian Presidency which believes that, on this subject, this is the last opportunity to succeed and to add another success to the already long list of successes. In order to find solutions that are acceptable to all (unanimity is required) on three questions - the linguistic regime, the role of the national offices and jurisdiction - issues which led to failure at the Council on 26 November (see EUROPE of 28 November, p.6), the Presidency is expected to have around just three hours. The meeting will begin at 10h00 and some sources note the departure of Spanish and Portuguese ministers from 13h00.
In its conclusions, the European Council of Laeken called on ministers to reach an agreement on three controversial issues on the basis of a compromise proposed by the Presidency and on contributions by Member States. Today, therefore, there will be two texts on the table: that of the Presidency and a joint text from Germany and France, clearly more detailed and quite different, although some proposals are compatible with the approach of the Presidency, which presented a compromise "that the Commission can live with", according to the term used by the spokesperson for Commissioner Bolkestein (who considered as "vague" the last positions taken by the Member States during a meeting of the Committee of Permanent Representatives). On this point, the Presidency interpretation is clearly more optimistic: - it evokes "positions that are more open than in the past". The Presidency plans to do everything in its power to reach a political agreement on the three controversial issues and is tabling on the "electroshock produced by the failure of 26 November and the reaction of the European Council" to obtain "additional flexibility" on the part of the delegations. In its view, the "basis for discussion remains the compromise presented in Laeken". We recall that the proposal in question provides for: - an open linguistic regime, with the possibility of presenting requests in national languages; - requests could be addressed to the national offices or to the European Patents Office but they would all be registered at the latter. The national offices could be responsible for seeking antecedents. The jurisdictional system would be centralised with the possibility of participation by national jurisdictions (see also EUROPE of 14 December, p.9).
Franco-German approach
In some ways, the proposals by France and Germany come between the Presidency compromise, which has taken very wide account of the linguistic requirements of Italy, Spain, Portugal and Greece and of certain other demands aimed at defending the interest of national patents offices, and seeking more efficient, quicker and less costly procedure. The Franco-German text insists that the procedure should be the responsibility of the EPO alone, which means that the linguistic regime of the Office set up in Munich would prevail. It also recognises, however, that the SMEs and research bodies that do not have the linguistic competences for drafting their requests in one of the three EPO languages (English, French and German) should be able to use their national language. The companies could send their requests for a Community patent to their national offices, as is already the case for the European patent, and the first stage in research could be in the national language. The role of the national offices would be subject to three conditions: (1) it would concern the sub-contracting of research into antecedents; (2) this should be requested or accepted by the applicant; (3) their intervention would only be possible in countries where one of the three EPO languages is not an official language. Germany and France also admit the translation of claims (central provision of the patent) in the language used by the applicant on the basis of a shared cost.
The Franco-German text urges for an integrated legal system, that it considers as an essential element of the Community patent. The system would rest on the following principles: - uniform nature of jurisdiction; quality and speed of decisions; - geographic and linguistic proximity for the person accountable; - and avoidance of an over-costly solution. It would comprise the decentralised chambers in Member States with the possibility of appeal at the Court of First Instance.