A new hurdle on the road to a EU patent?

The creation of a new European Patent System meets some firm opposition and obstacles from various sides. Debates have been going on for decades now whether we should have a EU – or in older terms “Community” – Patent.  Presently, the only “European” patents[1] that exists next to “national” patents are those granted by the European Patent Office (EPO) in Munich according to the Convention on the Grant of European Patents of  5 October 1973, commonly known as the European Patent Convention (EPC).  After grant, this European patent (“EP”) becomes a number (“bundle”) of national patents, so receiving (only) the effect those national patent rights receive in the respective EU countries. Although validity and infringement are decided along unified rules (in the EPC) national courts can and often will decide differently on those issues therefore creating uncertainty and division into what was meant to be a European patent.

The idea was to create a “unitary” EU or Community Patent[2].  The term “unitary patent”, means a single patent granted with equal effect throughout each and every EU member state and maintained as a single right. In general, such a patent would be litigated as a single right across the EU, and infringement and validity decisions would apply equally to all member states.

The road to a truly unitary right is littered with good intentions, after a failed Community Patent Convention (CVC) in the 1970’s in early 2000 a renewed effort was undertaken, by introducing the Community Patent Regulation, followed by initiatives by private practice and the judiciary, with the so called the London Agreement and a European Patent Litigation Agreement were the results. Typical tumbling stones were disagreements on language, translations and more substantive reasons like invalidity and infringement criteria that would need to be agreed by all major patent jurisdictions in Europe. The interests of national Patent Offices (making a lot of money by conducting all kind of lucrative tasks like prior art searches, etc.) made it also difficult to restructure the patent system.

In 2009 a legal hurdle came up, questioning whether the new EU Patent system is in line with EU Law. On May 18, 2010, the European Court of Justice held its hearing in the proceeding for an opinion under art. 300 (6) EC (now art. 218(11) TFEU[3] concerning the compatibility of the Draft Agreement for a European and Community Patents Court. This request for an Opinion was filed on July 9, 2009 by the Council of the European Union.

Jochen Pagenberg, present at the ECJ hearing, will publish his observations in an article to be published shortly. Here is a preview of his conclusion.

[1] The different routes you can take to patent an invention are the European, the international and the national route. The EPO handles patent applications for the contracting states to the European Patent Convention (EPC) and certain extension states, and also international applications under the Patent Cooperation Treaty (PCT).

[2] With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the “EU patent” and the “European and Community Patent’s Court (ECPC)” has been renamed the “European and European Union Patent’s Court (EEUPC)”.

[3] Treaty on the Functioning of the European Union