Europe Moves Toward European Patents and European Patent Court

The European Union (EU) is working toward a major reform of its patent laws that would create a European Patent and a European Patent Court for handling patent infringement litigation. Although the European Patent Office (EPO) serves as the primary examining body for most patents being prosecuted in Europe, the actual issuance of patent rights as well infringement litigation are still handled country-by-country. 200912071129.jpg

In a December 4, 2009 meeting, a unanimous EU Competitiveness Council adopted a set of conclusions supporting the new regime. Under the proposal, the new patent court would have exclusive jurisdiction over civil litigation related to EU and European patents. The new regime would likely require a revision of the European Patent Convention (EPC).

The Leading UK Patent Blog IPKat indicates that this is “happy news.” IPKat quotes a UK IPO press release that “This business-friendly deal will make patenting and innovating easier and more affordable for British companies. In particular, innovative SMEs will have more flexibility when choosing how to patent across Europe”.

The EU Press Release suggests that lowering costs is one of the most important goals: “The creation of an EU Patent would help to improve the current situation where a patent designating only 13 EU Member States is already 11 times more expensive than a US patent.”

Although more likely now than ever, this same debate has been ongoing for the past 40 years in Europe.

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24 thoughts on “Europe Moves Toward European Patents and European Patent Court

  1. 24

    Ned, it’s this tension, you see, between national sovereignty and European Union. There is a European Court of Justice. Its working language is French. It has been up and running since the 1950’s. The UK has an “opt-out” on Human Rights. We’re getting towards a common European appeal court for patent infringement suits but it does take quite some time, before countries will submit to having their industries enjoined by a court at the other end of “Europe”.

    Your second para I can’t answer. But you won’t hold that against me will you? I suspect you are not really expecting me to answer.

    Having the EPO do your examination isn’t so preposterous a suggestion. It is up to 40 countries by now, and the numbers are still rising.

  2. 23

    MaxDrei, I suppose you could let the courts of England, Germany and France individually address a patent in have their rulings binding in some fashion on the courts in other countries, but that would imply what we United States call a “full faith and credit” clause in our Constitution, which would imply a constitution in Europe. It would also imply the right to appeal to a European-wide Supreme Court, which of course again would imply a European constitution.

    Has anyone ever thought of simply adopting United States Constitution in Europe?

  3. 22

    Ned, back in the 60’s, the EC nations prepared for an EC patent. At the last minute they coundn’t hack it – for the reason you identify.

    So, they did the next best thing, and set up a supra-national agency to receive, examine and issue patent grant certificates. The national governments recognise them, on the basis that each EPO grant is, in reality, a “bundle” of national (and separately justiciable) patent rights.

    Any clearer now?

    How about the USA sub-contracting its examination to the EPO? But no, that wouldn’t work. Every country that belongs to the European Patent Organisation has the same substantive patent law, so just one Patent Office is enough.

  4. 21

    MaxDrei, I don’t understand how one can have a “European patent” without there being federal courts in which to litigate the patents and whose mandate would be enforceable across Europe. I agree with you that an English court should not have the jurisdiction to issue orders binding in Germany, for example.

    The same issue would arise in connection with a “world patent.” There would have to be “world courts” whose mandate would extend worldwide. One should not be required to accept, for example, an order from a court located in a hostile nation who is judiciary may or may not be independent.

  5. 20

    ‘The EU is very definitely not yet “The United States of Europe’.”
    Not yet, anyway.
    Regardless, I think the real story here is that this looks like yet another in a series of recent strides toward harmonization and a unified, global patent system. Not that I see such a major change to patent law happening in, say, the next 3 years. But it certainly seems to be on its way, and perhaps inevitable. The question is, what can we start doing now to influence the course of events and make such a system as un-evil as possible?

  6. 19

    Ned, most of the people that live in Europe consider “A Federal Europe” to be an oxymoron. The EU is very definitely not yet “The United States of Europe”.

    But I’m not an attorney at law, so I’ll let others explain further.

  7. 18

    MaxDrei, I see you are completely unaware of the concept of Federalism. By analogy to the USA, tt would not be a court in Mexico issuing an order, but a Federal Court of the United States. There is a difference, a big difference, especially since the avenue of appeal goes to the US Supreme Court.

    Now, I assume the same to be true in Europe. You would have Federal courts deciding patent cases, not so?

    MaxDrei said,
    “Ned, are you envious, wishing that American patent attorneys had as much blocking power as those translator agents residing in the smaller countries of the EU. Come on, do you really think that’s the sticking point? Or might it instead be issues of national sovereignty? What do you think of the idea of a court in, say, Mexico, being able to issue injunctions to stop infringing acts, that can shut factories all over the US?

    The “people blocking unification” still think that the EU is an association of sovereign States. Are they wrong? Are they not to be accommodated?”

  8. 16

    Hagbard, Lionel, who knows. Maybe it was we three who did get it right?

    I’m not an expert on machine translations or on spamming so I can’t judge between the two alternative explanations. Both seem to me to be plausible.

    Isn’t it amusing though, that the bot transmitted, just at the very point in the thread when a “machine” translation was apt.

  9. 15

    I was thinking along the lines of Hagbard. I thought it was intended to comment on Max’s post. I was wondering what translation program the poster used.

  10. 14

    hmmm, here was me thinking it was an cryptic observation re “the advent of credible machine translation”.

  11. 13

    Yes, but the spammer doesn’t know that. Most spam is posted by bots, and it’s likely that the bot just uses all of its tricks regardless of the capability of the particular forum or blog.

  12. 12

    There’s no “substantial duplicate” filter here. Often posts are substantially repeated with minor corrections. See 1:15 and 1:16 above.

  13. 11

    On the off-chance that someone doesn’t realize it, the “vernon getzler” post is blogspam.

    Simple strategy for getting around a spam filter: rip off someone else’s valid post, run it through any sort of mangler to make it different from the original post, and then post it with your spam link.

    The first step evades any sort of Bayesian filtering – because the message was allowed through, the text is already known not to be viewed as spam by the filter. The second step evades any sort of “substantial duplicate text” filter, because of blog spam filters which were developed in response to the strategy of simply ripping off other people’s posts.

  14. 10

    …through, and then back again into “English” Lionel.

    At least twice, I suspect.

    Maybe through all the languages of the EU, one after another, eh Vernon. It’s called Testing to Destruction. Very funny. Big laughs all around. But what does it prove?

  15. 8

    Indeed readers, holding one’s breather, for admonition, is definitely not a bully melody. Psyche you, I hit today heard it said that the advent of thinkable organisation version mightiness earmark things to move faster than some group in the UK imply. Tip: catch how Espana reacts.
    ========================================
    vernon getzler
    Attorneys

  16. 7

    Ned, are you envious, wishing that American patent attorneys had as much blocking power as those translator agents residing in the smaller countries of the EU. Come on, do you really think that’s the sticking point? Or might it instead be issues of national sovereignty? What do you think of the idea of a court in, say, Mexico, being able to issue injunctions to stop infringing acts, that can shut factories all over the US?

    The “people blocking unification” still think that the EU is an association of sovereign States. Are they wrong? Are they not to be accommodated?

  17. 6

    If they really really want a common market, they need a common patent and a common patent court.

    The people blocking unification always seem to be the local patent agents who will soon be out of a job. I wonder how they will be “accommodated.”

  18. 5

    Again, first question: Who is “we”?

    Second question: what has the European Patent Convention (substantive patent law) got to do with the EU?

    Third question, If there is a push to harmonise, is it not a push to harmonise substantive patent law and filing formalities, rather than court procedure in infringement actions around the world?

  19. 4

    Indeed readers, holding one’s breath, for example, is definitely not a good idea. Mind you, I have today heard it said that the advent of credible machine translation might allow things to progress faster than some people in the UK suppose. Tip: watch how Spain reacts.

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