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On 3 April 2007, the Internal Market and Services Commissioner of the European Commission published a Communication in which the European Commission sets out its vision regarding the future of the patent system in Europe.
The Commission has published this Communication with the aim of revitalising debate on how the patent system in Europe could be reformed so as to enable high quality patents to be obtained throughout Europe at lower cost than at present. The Commissioner states that:
Patents are a driving force for promoting innovation, growth and competitiveness, but the single market for patents is still incomplete. Our 2006 stakeholder consultation showed that the EU simply must deliver, in particular on the Community patent and sound litigation arrangements, because in today's increasingly competitive global economy Europe cannot afford to lose ground in an area as crucial as patent policy. That is why I propose to have a fresh look at the various options and to work with the Council and the Parliament towards political consensus on real improvement of the patent system.
The Communication sets out a clear desire to move forward with the implementation of a single Community-wide patent, known as the 'Community Patent', but criticises the European Council's Common Political Approach adopted in 2003 because of the requirement to translate the patent claims into all the different languages of the EU member states. The Community patent is seen as the key element in reducing the cost of obtaining patent protection throughout Europe which, under the current system, the Communication indicates, is many times more expensive than obtaining corresponding protection in the US or Japan.
The Communication also highlights the need to establish an efficient EU-wide patent jurisdiction in order to reduce the high cost of patent litigation under the current system. Presently, a granted European patent becomes a 'bundle' of separate national patents, leading to the possibility of costly litigation in multiple national jurisdictions. The Communication recognises that this can be prohibitively expensive for SMEs and individual inventors, and so a more unified approach is required.
Opinion between member states has so far been polarised between two separate options, and so the pursuit of either one does not currently seem to have a realistic chance of success. The first option is set out in the draft European Patent Litigation Agreement (EPLA) and proposes a uniform jurisdiction for litigation of European Patents by forming a European Patent Judiciary, essentially comprising regional courts of first instance, and a centralised court of appeal. However, some view the creation of a separate jurisdiction in parallel to the Community jurisdiction as complicated and risks creating inconsistencies and, in the case of the creation of the Community patent, it would lead to duplication of EU-wide patent courts.
The second option comprises establishing unified court which would deal with litigation of both European patents and also future Community patents. However, some member states view this option as unworkable as being inefficient and impractical.
The Commission believes an approach combining elements of both options could be built upon, by providing a specialised judiciary with competence for litigation in European patents and future Community patents, strongly inspired by the EPLA model, but which would allow for integration into the Community jurisdiction. In any case, the Commission is keen that this issue does not jeopardise the creation of the Community patent, nor should there be any duplication with competing jurisdictions.
In summary, by issuing this Communication, the Commission seeks to emphasise the need for an improved patent system in Europe and to revitalise debate on the issue. It aims to encourage agreement between member states to make progress on the Community patent and to improve the fragmented litigation system, so as to make the patent system more accessible and more cost effective.
The full text of the European Commission's Communication can be seen here:
http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0165en01.pdf
The European Commission's press release on the issue can be found here:
