IP SUMMIT 2010
What are the problems with the current patent system in Europe that could be resolved by an EU patent?
Van Pottelsberghe: An EU patent would improve our innovation system in Europe and make the patent system more available to small firms and universities. Currently, once a patent is granted by the EPO (European Patent Office), it must be put in force in each desired national system—a fragmented, and hence ineffective, system. A European patent enforced in only six EU countries is five times more expensive than a US patent. Tis is a significant issue, but is far from being the only problem. You must manage your portfolio at a country level and pay all the related additional costs. Tis means greater managerial complexity. Ten, in case of parallel litigation, outcomes may vary across countries. Only large firms can afford to litigate across countries; the uncertainty is not attractive for entrepreneurs, academic spin-offs and even SMEs. Te current system also results in low quality—because it runs in parallel to the national offices system, which grant patents independently of the EPO. Companies that are in the grey zone with their patents can file in parallel another patent through the national route. So if they fail at the EPO, they can still have something granted in some countries. Tis reduces the overall quality of the system and creates a lowest common denominator in quality.
Fröhlinger: We have a patent system that, aſter grant, is currently fragmented in Europe and hampers access to proper protection for SMEs. Big companies also suffer from the system but less than small ones. Te costs of filing translations, getting them published by the national offices and paying for local representatives to deal with all this are excessive. Te result is that many SMEs do not patent at all, or that they choose US patents. And even if they have patent protection in Europe, it’s only in a small number of member states. Ten you have to consider the cost and complexity of litigation in different countries. Costs for litigation are skyrocketing in the UK, for example, and cannot be afforded by SMEs. A single patent and a unified patent litigation system would ensure accessibility to the patent system for SMEs.
Battistelli: We must start by acknowledging the fact that we have a European patent and the system is a success story. We have 38 member states and 600 million inhabitants. Tat’s more than the US, Japan and Korea put together. I think we have reached a very high degree of quality—we are acknowledged for quality over the world. We handle 50 percent of the PCT applications. and US companies represent 25 percent of our
applications. When Europe can unify its work, then it is very successful. On the other hand, it is necessary today to validate European patents nationally. In lots of countries, that means costly translations. Applied by 15 states, the London agreement already represents a big step forward on this. Te second shortcoming of the system is that in case of litigation, you have to go in each national court. Tat means a waste of money and energy, and risking divergent decisions.
Sueur: Tere is a key issue. Te European patent is not a bad tool. Usually, with three to six countries, we have the protection we need for certain industries for the money we can spend. In other industries requiring a broader protection, the patent is hardly affordable. But over the long term, the dissymmetry between the unified market and the fragmented approach to patents and enforcement is a problem. Te cost of the European patent is also quite important; this is why we are fighting for the ratification of the London Agreement, which avoids unnecessary costs, as translations are not read by anybody. It’s a waste of money. Te EPO is very good, a state- of-the-art patent office and offers reasonable predictability however.
What are the main obstacles preventing the adoption of the EU patent, and how can they be navigated? Why does language seem to be such a problem?
Fröhlinger: It’s one of the longest outstanding problems—the idea has been around for 60 years. Tere are many different reasons for this, including concerns of member states that have problems with conferring jurisdiction to a unified patent litigation system.
Te main stumbling block, however, has been the language for the EU patent. Some member states do not see to build on the existing EPO system with its three languages, which works well. Te EU patent will not be a new type of patent—it will be a sub-category of European patent, and it is normal that it would apply the language regime of the EPO and not create something new. Some member states have political concerns about this, but they don’t pay enough attention to the realities of the patent system and the practice of the EPO. Tere is no miracle solution, but it’s only at grant that you have to choose what kind of patent you want.
Battistelli: Cost is a complicated issue, and we should see patents not as costs, but as an investment. Te EU patent system must be accessible to all the players, especially to SMEs and public laboratories. But it must cover its costs, as the EPO is self-financed. We have to find the balance between costs incurred and services
42 World Intellectual Property Review November/December 2010
provided. All the people in discussions agree that it won’t be used if it’s too expensive. Quality has a price: if you grant legally solid patents, you have a cost.
Te language issue is very difficult, too. Language is a central aspect of our cultural identity, and Europe is built on these identities. My experience as EPO’s president, and before that as the head of a national patent office, is that we have a balance with three official languages. Te EPO has had 30 year’s experience working daily in three languages. Te Council proposal is based on these three languages, and the EPO will be in charge of granting this EU patent. We understand that there are discussions around the language question, but the proposal is largely approved by member states.
Van Pottelsberghe: From my viewpoint, the language issue is a fig leaf, an easy argument used to block the creation of a truly European patent system. Te most important problem comes from the NPOs (national patent offices), whose representatives are member of the working group that prepares the draſt proposal for the EU Competitiveness Council. It’s like asking turkeys to vote for Tanksgiving. Tey want to keep their offices, their budget and their power. A second blockage comes from lobbies that represent lawyers and attorneys. With the creation of a EU patent, at least €400 million would switch from attorneys, translators and lawyers back to the business sector and patent offices. English- only would be enough for the business sector (currently, 80 percent of patents are in English anyway), and an additional translation of the claims section in French and German would be acceptable provided it leads to a political agreement.
“ A SINGLE PATENT AND A UNIFIED PATENT LITIGATION SYSTEM WOULD ENSURE ACCESSIBILITY TO THE PATENT SYSTEM FOR SMES.”
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