Alicante, 22/04/2002 (Agence Europe) - The Spanish Presidency of the EU Council hopes to reach a political agreement on the Community Patent during the Internal Market Council on 21 May, José Lopez Calvo, Director General of the Spanish Trade Mark and Patents Office at the Ministry of Science and Technology, said during a seminar organised by the Kangaroo Group at the European Trade Mark Office (see EUROPE of 20 April, p.12). The Council's working groups are this week beginning examination of different scenarios developed by the Commission to resolve the problem of translating the future Community Patent, and the Presidency should present a proposal of agreement in two to three weeks' time, he said. Four questions remain to be resolved, he recalled: the role of national offices, the repartition of income between the European Patents Office in Munich and the national offices, the translation of patents and the relevant jurisdiction in the case of dispute.
As far as the role of national patents office is concerned, "agreement was reached under Swedish Presidency so that national offices may receive requests for patents and carry out research that approximately covers half of research procedure", Mr Lopez Calvo recalled. Fifty percent of the cost of registering Community patents should be borne by the European Office and 50% by the national offices but "the breakdown between each Member State has still to be defined".
Discussions on relevant jurisdictions "are not very advanced", admitted José Lopez Calvo. Some of the Member States, including France, insist that jurisdictional powers should be centralised. After the entry into force of the Treaty of Nice, a specialised chamber could be created with the European Court of Justice. Germany mainly insists that the role of the local courts, such as that in Düsseldorf, should be maintained.
The European Parliament proposed in the report by Ana Palacio adopted in April (see EUROPE of 11 April, p.9), that the national courts should play the role of first instance and the European Court of Justice that of court of appeal. Nonetheless, until the treaty has been ratified, the question of appeal poses a problem of legal base, recalled the European member of the Spanish Socialist party, Manuel Medina Ortega, during the Kangaroo Group seminar. By having different bodies, companies might end up "shopping" among the most favourable jurisdictions, warned French national Sylvie Mandel, President of the First Board of Appeal of the Trade Mark Office, urging for a "single court and a single body of rules".
The European Commission should present a compromise proposal, recalled José Lopez Calvo. "The overall result of the discussions will largely depend on Germany's attitude on the question of jurisdictional systems", he admitted
Several scenarios are being studied for unblocking issues of translation of patents. The Commission had originally proposed only using the three current languages of the Patents Office in Munich (English, French and German). Spain, Italy and to some extent Portugal, Greece and Belgium insisted that all Community languages should be used, considering that this is necessary to make the European patent accessible to small and medium-sized companies. At the Laeken Summit, France and Germany had opposed the compromise put forward by the Belgian Presidency, providing for patent requests to be translated into all languages, as well as summaries and claims. The Summit had concluded by requesting the Internal Market Council should reach an agreement on a patent that is financially competitive. "The aim of the Presidency is to reach a patent whose cost per habitant after enlargement is lower than the cost per habitant of the patent in Japan and relatively close to the cost per habitant in the United States", said José López Calvo.
The Commission developed five scenarios that will be presented to the Member States this week. In the most extreme case, where the patent is fully translated into all Community languages after enlargement, its price would amount to EUR 75.891. At the other end of the scale, where only "independent claims" taking up the heart of the patent would be translated into all languages, the cost would be 20,575. A patent fully translated into 11 languages would cost 39,599 and a patent translated according to the "London Protocol" - which only provides for Denmark, Sweden and the Netherlands giving up part of the translations - would cost EUR 70,628 (this Protocol, however, has never been ratified).
In its report, the European Parliament had opposed, for its part, the fact that the Community patent should take on the five language regimes of the Office of Harmonisation in the Internal Market (OHIM, Alicante Trade Mark Office): English, Germany, French, Spanish and Italian.
Under this system, requests can be introduced in all EU languages. The requester would then chose a working language from the five Trademark Office languages, which would also be the language that would apply to any dispute unless both sides decided otherwise. The trademark would then be registered in all EU languages. Parliament's aim is to take account of not only economics but also the political aspect of a range of EU languages that is recognised in the Treaty, pointed out Luis Berenguer Fuster (Spanish Socialist MEP), mentioning the political dangers of "aggressive language policy".
The Alicante Trademark Office's model is not necessarily relevant for the Patent, warned the Office Vice-President Alexander von Mühlendahl. For trademarks, the translation of requests (that tend to be two and a half pages long) costs EUR 200-300 in total. Translation costs are extremely marginal compared with the Patent where millions of pages have to be translated, he explained. The Office has also managed to keep translation costs down by encouraging people requesting trademarks to use standard forms to describe their products, but this can't be done for patents, he pointed out.
In practice, the English language clearly dominates. The Trademark Office statistics reveal that in 42% of cases requests are registered in English, 20% in German, 10% in Dutch, 7.5% in Spanish. The procedure language chosen by the requestors is English in 52% of cases, French in 28% of cases, 7.3% Spanish, 6.4% German and 5.4% Italian. The surprising absence of Dutch is explained by the fact that Dutch companies point out that the working language for their patents in the US is English, said Alexander Mühlendahl. In an aside the President of the Kangaroo Group, CDU MEP Karl von Wogau.