14/02/2011

The EU Patent: strengthening the Internal Market

By Klaus-Heiner Lehne MEP, Chairman of the Legal Affairs Committee

A coherent EU Patent is one of the flagship initiatives of the Internal Market. While intellectual property is the only sustainable resource in Europe, its protection is still not unified, but fragmented. This makes patents in Europe more expensive than in competing markets such as the US, China or Japan. Discussions on an EU patent have been going on for almost 30 years, and the last proposal of the Commission dates back to 2001. The reason the EU has failed to establish a cross-border patent system is a dispute between Member States on a language regime: would applications for new patents have to be submitted in all EU languages?

The European Patent versus the EU Patent

The current system of patents in Europe has nothing to do with the European Union even though it is called "European Patent". This European Patent is based on an international agreement (European Patent Convention) which includes 38 signatory states. The deficiency of this system is that it does not provide for coherent protection. For an application to the EPO for a patent that would be valid in, for example, 7 of the signatory states, there is only one application procedure. However, once the EPO has granted this patent, it falls apart and becomes 7 national patents. Which is where problems arise because there are now 7 patents and the risk of 7 different understandings of the patent - a problem when patent disputes go to court: for patent-holders it can mean going to court in 7 countries and facing the possibility of getting 7 different expensive and possible contradictory rulings. The EU Patent will repair this deficiency.

The European Patent is administered by the European Patent Office (EPO). Its official languages are English, German and French. One of the options for a language regime for the future EU patent is to align the Union's system to the system of the EPO. As a consequence, the current 23 official EU languages would have to be reduced to 3. This is the why Member States have used their veto rights against it.

Enhanced cooperation

The Lisbon Treaty - as did the Nice Treaty - demands unanimity on new legislation in the Council, which provides each Member State with a veto right. To avoid a blockage in Council due to individual veto rights, the Lisbon Treaty provides for an instrument it calls "enhanced cooperation". Member States that want a legislative proposal to go ahead can do so regardless of the proposal being blocked by other Member States, by adopting it voluntarily. The Treaty requires a minimum of 9 Member States. Another requirement is the consent of the European Parliament.

Parliament's role

A vote in Strasbourg on Tuesday will determine whether or not Parliament consents to the enhanced cooperation procedure. It is not about the language regime of a future EU Patent, or about the patent as such. With its consent, Parliament will merely open the door and pave the way for "willing" Member States to continue the legislative procedure. Once enhanced cooperation is established, Parliament is involved under the same procedures as with "ordinary" legislation. This means that the Commission will make proposals for a future patent regulation for those countries who have said they wish to participate and the usual legislative procedure will apply. Parliament will also be consulted about the language regime, under a separate proposal.

In a meeting of EU ambassadors on 7 February, 25 Member States with the exception of Italy and Spain expressed their willingness to join the enhanced cooperation procedure. With their vote in Strasbourg, MEPs will allow these 25 Member States to cooperate with the European Parliament in establishing an efficient and cost-saving patent system in the EU.