The way forward for Community patents

Last week, the Commission published its proposals on enhanced co-operation to break the decades-old logjam that has denied users the possibility of getting a single patent for the whole of the European Union. Its two-pronged approach comes as part of a package of measures under the rubric "Single Market Act" (doesn't that sound reminiscent of Maastricht?).

Whether users actually feel the lack of a single EU patent is perhaps a moot point - it was generally acknowledged back in the eighties that the European patent system (which was, ironically, built on the foundations originally intended for the Community patent) gave users pretty much everything they wanted. The big issue these last twenty or more years has been patent litigation, addressed unsuccessfully in the European Patent Litigation Agreement and the Uniform Patent Litigation System. This aspect is not dealt with in the latest proposals: the Commission will be coming back to the litigation issue next month.

The two new proposals deal with the creation of unitary patent protection and with the applicable translation arrangements. As with other areas of intellectual property law, and indeed with many aspects of the European project since the 1950s, language issues have been to the forefront, despite 15 Member States creating the London Agreement to reduce the need to translate European patents quite so much.

There are, naturally, massive problems in turning a filing-and-prosecution system like the European Patent system (which ends up with the grant of a bundle of national patents) into a true unitary patent system. The problem is exacerbated if some Member States are't willing to be part of the new initiative. How to deal with validity problems in the new unitary-but-not-quite-unitary system is a major headache, for example. Plenty more to discuss on this topic - but later ...

Even this much isn't certain - Spain has until 8 May to challenge the decision to proceed on the basis of enhanced co-operation. For the creation of unitary patent protection, under Article 118(1) TFEU a qualified majority of the 25 member states involved must vote in favour, as must the Parliament. For the language arrangements, governed by Article 118(2) TFEU, there must be unanimous agreement among the 25 Member States, after consultation with the Parliament.

The proposed language regime will enable applicants to file in any language, but if the language chosen is not English, French or German, the filing must be accompanied by a translation into one of those three languages. The patent would then be granted in whichever of these three languages the applicant chooses. For a transitional period of up to 12 years, patents granted in French or German will need to be translated – at the patent holder's expense – into English, and those granted in English will have to translated into another EU official language.