Brussels, 14/03/2008 (Agence Europe) - On Wednesday 12 March, Council national experts reconsidered the issue of a Community patent, which has been gathering dust since May 2004 when the Competitiveness Council indefinitely postponed discussion on the matter (see EUROPE 8709). They spent the whole day discussing a working paper produced by the Slovenian Presidency of the EU, a copy of which has been obtained by EUROPE. The document focuses on two issues to be resolved if there is to be a unanimous political agreement. Should claims in the future Community patent be given legal status, and how is revenue generated by the annual renewal fees paid by a patent holder to be distributed? These discussions, part of a general approach to improve the European patents system, including dispute settlement, will continue in May.
Legal status of translations. The Slovenian Presidency is trying to find a balance between providing a high level and uniformity of legal protection in the EU, and keeping the costs of the Community patent affordable for industry and, in particular, small and medium-sized enterprises (SMEs). It puts forward two options for the translation of patent claims, the part of the patent which is at the very heart of legal protection. The first option is for a “flexible” Community patent, somewhere between a genuine Community patent and the current European patent issued by the European Patents Office (EPO). The flexible Community patent would allow a company to decide, on a patent by patent basis, the extent of the geographical coverage of protection it wants and, therefore, the translation costs it is willing to incur. This option guarantees the legal certainty of claims, as Spain has called for. However, unlike the last proposed compromise on the Council table, it does not require translation of the claims of the future Community patent into all the official languages of the EU, thereby, greatly reducing the cost of the Community patent, the Slovenian Presidency says. Still with a view to keeping costs as low as possible, financial incentives could be provided to member states which did not require a translation into their official language(s).
The second option seeks to simplify translation procedures in order to have Community patents translated into all official EU languages at reasonable cost. The Slovenian Presidency suggests setting up a “central service” at European level to carry out translations of patents using automated translation tools. On Wednesday, delegations saw a presentation by the EPO of the automated translation systems they use. The Slovenian Presidency believes that this option has several advantages: while being protected throughout the EU, companies granted a Community patent would no longer have to concern themselves with translations nor would they have to consider the geographical extent of protection they want. Translations would be available much earlier in the patent application process and this would enhance the dissemination of patent information. Nevertheless, the Slovenian Presidency says that automated Community patent translations “could be for information purposes only and could not produce any legal effect”. This is the major difference with the first option. Backed by the European Commission, most member states (Germany, Portugal, United Kingdom, and others) have expressed their preference for the second option. France, which will assume the Presidency of the Council of the EU, preferred to look on from a position of benign neutrality. Industry, calling for a solution that reduces the cost of patents in Europe, goes with the majority. “We prefer the second option,” said Jonathan Zuck, President of the Association for Competitive Technology, a network of 3,000 innovative SMEs backed by Microsoft and eBay. “Linguistic and cultural diversity are best served by poetry and literature,” he opined.
Annual fees. According to the common political approach of the Competitiveness Council of March 2003, annual renewal fees should be equivalent to the fees paid on an average European patent, i.e. one which covers about eight member states. The EPO, which would issue the Community patent, would collect fees, keeping half. The other half would be paid out to national patents offices, with a distribution key determining how they are allocated. This would reflect the level of member states' activity in patents and the size of national markets. The Slovenian Presidency proposes that the Council agree on the relevant criteria for the level of renewal fees and for the allocation of the 50% share being distributed among national patents offices. A “select committee” would be set up a European level to implement ministers' decisions. The idea is to allow member states, where patent activity is low, to be paid fees. This would be a way of persuading small member states that they have something to gain from the system, a diplomat said. (M.B.)