IP SUMMIT 2010
“ WE PROBABLY NEED SOME KEY POLICY MAKERS IN EUROPE, SUCH AS SARKOZY OR MERKEL, TO TAKE IT AS A BIG POLITICAL OBJECTIVE.”
Fröhlinger: I appreciate very much Bruno van Pottelsberghe. We have worked with him and he has helped us a lot to understand the underlying economics. But on his last point, I disagree with him; 48 percent of applications from EU companies are fi led in German and French. It is because German and French companies fi le via their national patent offi ce. From the German offi ce in particular, they get a fi rst report very quickly. T is eff ectively works as a fi rst fi lter before applications go to the EPO. T e result is that many applications concerning inventions that are not patentable don’t even go to the EPO. T is helps very much the EPO, where one of the biggest problems are the current backlogs. If we designed a system where everything went straight to the EPO, and which would force companies to use a diff erent language of procedure for EU patents than they use for European patents, this would result in problems in those countries with lots of applications, such as Germany.
Sueur: For a while, European industry has been supporting English-only which corresponds to reality and remains a long-term goal, but at the same time, the industry refuses to change the EPC system. We have been living with this system for the last 40 years, we know it, and it’s good. At the application stage, there will be just a European patent application, as it is the case today, and aſt er grant, it will then become, if the applicant wishes so, an EU patent.
What if agreement cannot be reached? Is there a case for some countries organising a separate system on a smaller scale?
Sueur: Provided such an agreement has a reasonable number of participants, in terms of industrial size, then why not?
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Van Pottelsberghe: I think if agreement can’t be reached, then some countries should defi nitely do that. T ose who resist will be the losers at the end of the day, and would have much less negotiating power. T ey would only have the opportunity to join the system in whatever form it takes.
Fröhlinger: From the Commission’s point of view, we would of course prefer to have an agreement between all our member states. T ere are some who start talking about enhanced co-operation—it’s foreseen in the EU treaties. If no agreement can be reached with 27 member states and if a group of member states submits a request for enhanced co-operation, we will have to consider this.
Do you think these latest efforts will be successful, and is an EU patent inevitable?
Van Pottelsberghe: If Europe continues to strengthen itself, it is inevitable, and we should have it as soon as possible. I am a bit pessimistic regarding this year’s outcome, but hope for it. We probably need some key policy makers in Europe, such as Sarkozy or Merkel, to take it as a big political objective. T e UK would have its language as the main translation requirement, so may not be the best country to look to. It would be great to have strong French or German political backing. It is however important to keep in mind that several issues still have to be addressed in order to make the system work effi ciently. A key issue is to re-think the whole governance of the system. Second, Europe will still be the only major economy with a three-tier patent system (with the current proposal, three patent layers will be active: national patents, the current European patent that must be enfoced
in the desired member states, and the EU patent valid in all countries), which will do nothing for Europe’s competitiveness. We will be creating a new round of 20 years of negotiation because of the three layers, and that’s incongruous.
Sueur: If I base my answer on experience, I would say nothing is going to happen even if I would say that the most recent commission proposal is probably the best so far. With a limited number of exceptions, it seems as if there is majority acceptance but no unanimity. T e question is whether the minority can be appeased. If nothing happens, there will be two possible consequences. T e fi rst option is that the fi le will be closed for a long time. Mr. Barnier will be then the last commissioner for a while dealing with it, this will be a disaster for EU enterprises’ competitiveness. We will not have the tools we need, at the time where there are more and more patent applications from emerging countries—China and Brazil in particular. T e second option is that a deal will be concluded between less than 27 countries but that the door will remain open for the other countries to join later on. I know that enhanced co-operation requires unanimity, but I can hardly imagine that one or two countries would prevent other countries from moving forward just because they don’t like a system they will not be a part of.
Battistelli: I am an optimist. We are very close to a decision. I am not the fi rst EPO president to deal with this issue, but hopefully I will be the last.
All participants will be attending the IP Summit in Brussels on December 2-3.
World Intellectual Property Review November/December 2010 43
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