Brussels, 20/03/2007 (Agence Europe) - On Tuesday 20 March, EU Internal Market Commissioner Charlie McCreevy told the European Parliament's Legal Affairs Committee that the European Council had instructed the European Commission to unveil its new patent strategy and it was planning to do so, striking the iron while it was hot. McCreevy said the EU's patent strategy would cover issues still pending over the Community patent and the creation of an EU dispute settlement system. The strategy would also cover accompanying measures for SMEs to encourage technology transfer, the enforcement of intellectual property legislation, the introduction of out-of-court settlement procedures, patent litigation insurance and special measures at international level. In an interview with this newsletter, McCreevy said that it would only be a matter of weeks before the strategy was adopted, but did not specify whether it would be endorsed in time for the conference on patents being organised by the German Presidency in Berlin on 29 and 30 March.
The European Commission's future report will first address the various options that could lead to the establishment of a powerful EU patent court, according to documents leaked to Europe. Improving the legal system for patent protection is seen by stakeholders as the most important issue to be dealt with first since it could pave the way for progress in creating a Community Patent to provide legal security at an affordable price.
Aware of differences among member states about the correct approach to be taken in this field, the Commission feels that consensus might be emerging on a number of points, which it describes as a good starting point for preparing a new EU legal system for patents. Consensus seems to be emerging that the system has to be effective, its costs should reflect maximum legal security, appropriate proximity to users and the court responsible for ruling on patent legislation should respect the primacy of the European Court of Justice as final arbiter on EU law, including issues surrounding Community 'acquis' and the validity of future Community Patents.
The report outlines three options which would enable an EU patent dispute settlement system to be set up. It starts by discussing the European Patent Office's European Patent Litigation Agreement (EPLA), which a large number of member states see as a way progress can be speedily made. The Commission adds that these countries favour active EU involvement in the process, which would only be possible if the Council gives the Commission a clear negotiating mandate for the EPLA. Other member states, including France, prefer a second option, namely the establishment of a unified jurisdictional structure to deal with disputes over EU patents and future Community Patents. This would require international agreement involving the EU to give it legal powers over EU patents. The Commission comments that some member states and stakeholders feel this is not a viable option.
Hence the third 'integrated' option, combining the first two. The Commission mentions an EU legal system for patents as foreseen in the EPLA, constructed such that it could cover the future Community Patents. This would require the creation of a special EU court with the power to settle disputes over both Community Patents and EU patents, involving elements of the EPLA system. In parallel, work would need to continue on creating the new Community Patent, which would appear to be the best solution in terms of legal security and keeping costs down. The Commission points out that stakeholders reject the common approach decided by the Council in 2003 on the relevant draft legislation, but the Commission would be prepared to prepare any necessary proposals, including a proposal concerning a mandate to allow negotiations to start on an improved patent dispute settlement system. (mb)