Brussels, 03/04/2007 (Agence Europe) - On Tuesday 3 April, the European Commission published a report aiming to breathe new life into the debate over how to improve the EU patent system (see EUROPE 9390), four months after being forced to postpone the adoption of its strategy due to opposition from various member states (see EUROPE 9320). In order to deal with the problem of settling patent disputes, the European Commission is recommending a pragmatic approach, building on and combining the two proposals currently on the drawing board, namely the European Patent Litigation Agreement (EPLA) and the plan mooted by some member states of creating a single EU court to rule on patent issues, the European Patent and the future Community Patent (see EUROPE 9314). The European Commission feels that adopting a new Community Patent would be the best solution both in terms of keeping costs down and in terms of legal security. To achieve this, however, there is no miracle solution and the Commission simply talks of 'necessary' flexibility with regard to translation requirements for the Community Patent. When it comes to timing, the Commission wants the German Presidency to get the ball rolling at ministerial level by the end of June 2007 following technical discussions in May. Any formal proposals would have to be made on the basis of a clear mandate from the member states, giving the European Commission instructions over how to proceed before the end of June 2007.
At present, the European Patent Office (EPO) uses a single procedure to issue European patents but the Commission points out that once a European Patent has been granted, it becomes a national patent subject to the rules of the EPO member countries for which patent protection is requested. There are therefore a multitude of legal systems dealing with European Patent conflicts which raise issues that go beyond national state boundaries, explains the Commission. The EPO's planned EPLA project aims to set up a single unified system for setting patent disputes (option A). The problem is that this is not part of the EU system and only covers disputes over the European Patent. Some member states are calling for the creation of a special EU court with responsibility for settling patent disputes for both the European Patent and the future Community Patent (option B). One of the problems with this is how to transfer EU power to decide on patent issues. Involvement in this unified system of EPO countries which are not members of the EU, like Switzerland, may not be simple.
Integrated legal system. In order to strike consensus over this thorny issue, the European Commission feels that reflection should cover how a single legal system could be set up to deal with disputes over both the European Patent and the future Community Patent. Such a system would be based mainly on the EPLA and would form a harmonious part of the EU legal system, combining aspects of both option A and option B. This would be a hybrid solution, explains Thierry Stoll, Deputy Director General at DG Internal Market at the European Commission, with a limited number of legal chambers of first instance in the member states. Any appeals against these courts' decisions would be dealt with by a fully centralised appeals system guaranteeing uniform interpretation of patent law. It would also be possible to appeal to the European Court of Justice as the final court of appeal. Stoll believes this system would be a two-level system with exceptional final appeal cases being heard by the Court of Justice. The restricted number of courts of first instance might mean that not all member states have such a court, and Stoll suggests it would be possible to imagine a central body coordinating cases even at court of first instance level. More than 90% of current patent disputes in the EU are heard in Germany, France, the UK and the Netherlands.
The court that the Commission is mooting would have the following characteristics. IT would have power to rule on cases of violation of the legal protection granted by patents, the validity of patents and calls for damage and interest payments. The court of appeal and the courts of first instance would also be subject to common procedural rules. The Commission believes that against this backdrop, the current work on the EPLA provides a useful contribution. The judges in this integrated legal system would have to be qualified both legally and technically and would enjoy full legal independence. The patent court would have to accept European Court of Justice as final decision-maker on European legal issues, including issues connected with the Community acquis and the validity of future Community Patents.
Supporting measures. In parallel with reflection over an integrated dispute settlement system, the European Commission is suggesting a number of support measures to help improve the quality of patents for SMEs. Referring to the PRO INNO Europe initiative, it is planning to launch awareness raising campaign under the 'Competitiveness and Innovation' Framework Programme (see EUROPE 9286). The Commission mentioned its recent report on improving the transfer of knowledge among industry and research institutions. In order to ensure better respect of patent law, it is examining the utility and value-added of out-of-court settlement systems, which would be less costly and less time-consuming. The Commission points out that in 2006, it held a public consultation exercise on patent litigation insurance, in which most interested parties expressed scepticism about the compulsory system recommended in a study commissioned by the Commission. The Commission belie s that the projection of intellectual property rights and the fight against pirating and counterfeiting should be carried out at international level. Germany is chairing the G8 group of countries this year (the world's most industrialised countries) and wants to ensure progress is made in implementing the Saint Petersburg declaration on intellectual property rights (see EUROPE 9236). (mb)