The European Council adopted the finishing touches this month on a new patent system for Europe. The package agreed on covers elements intended to bring about a single EU patent and establish a new patent court in the EU. Both together are hoped to make it less costly for businesses to protect innovative technology and make litigation more accessible and predictable.
The Council agreement encompasses the main features of a future patent court in the EU. A specialized patent court will allow cases to be heard before judges with the highest level of legal and technical expertise in patents. A unified court will also mean that parties do not have to litigate in different countries, incurring high costs.
Parallel litigation can amount to more than â‚¬500,000 in a typical case, which can be cut drastically by a unified court, saving as much as â‚¬289 million each year for European companies. The court will include local and central chambers under a common appeal court. In the initial stages, parties will be able to continue to use national courts, allowing confidence to build up gradually in the new system. The decision is currently awaiting review by the European Court of Justice.
Ministers have also agreed on an approach to EU patent regulation. The idea of an EU patent was originally proposed by the European Commission in 2000 under the Lisbon strategy, but negotiations stalled in 2004. The creation of an EU patent would help to improve the current situation, where a patent valid in just 13 EU member states is 11 times more expensive than a US patent. However, the creation of the EU patent will depend on a solution to be found on the subject of translation. A common understanding has also been reached on renewal fees and the cooperation between patent offices.
Renewal fees will be set at a level to facilitate European innovation and foster competitiveness. Furthermore, the EU patent will involve partnerships between patent offices in Europe to allow more rapid delivery of patents and increase speed of access to market for innovative products and services.
The current fragmentation of the patent system in Europe and in particular the lack of a unitary title and the absence of a unified patent litigation system renders access to the patent system complex and costly and hampers effective enforcement of patents, especially for smaller businesses. Innovators wishing to protect their invention in various member states of the community can currently achieve this protection only through separate national patents or through a European patent.
This system entails multi-forum litigation, since companies may have to litigate in parallel in all countries where the patent is validated. Stakeholders have repeatedly reported that this involves considerable cost, complexity and legal insecurity resulting from the risk of contradicting court decisions in different member states.
The new proposal may mean that protecting patents in Europe will no longer be a costly journey with an unknown end.
The author is the head of the International Department at GSCB Law Firm.