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EUROPE / PATENTS / EUROPEAN LAW

A Union Patent instead of the Community Patent: Developing the European Patent into a European Union Patent

Otto Bossing

IIC, Vol 34 No 1, 2003

[Editorial Note. Readers are reminded that the existing European Patent system is not an instrument of European Union law, having been set up under a separate Treaty, with different membership. The European Community Patent system has never come into being. The European Community, a constituent part of the European Union, has legislative powers in this field; for the time being, the European Union does not. See Editorial [10012].]

In view of the countless problems of reconciling the European Patent system with the requirements of European Community law, this article offers some constructive suggestions for developing the European Patent into a European Union Patent. The author accepts that the use of the term European Union is, strictly speaking, incorrect in this context and that the European Union is not yet fully established from an institutional point of view.) The problem hitherto has been that the European Patent system, having been set up under an international agreement among states, not all of which were Member States of the European Communities, was treated as sacrosanct, Community law being invoked only to augment the European system. In recent years the Community authorities have proposed the introduction of a Community Patent, valid throughout the European Community but otherwise largely dependent on the substantive law provisions of the European Patent system, as an alternative to the "bundle of national patents" available in the form of a European Patent. What the author of this article now proposes is that the Community authorities should introduce new legislation, incorporating substantive patent law, beginning with the provisions governing patentability, and using Community instruments similar to those used in establishing a Community Trade Mark law. The author recognizes that this would create a problem for states, such as Switzerland, which adhere to the European Patent system but are not members of the European Communities; but this particular problem is not insuperable. The article discusses the approaches to substantive patent law adopted under the European Patent system and reflected in developments in the European Community; the gradual emergence and acceptance of the European Community's legislative powers in the field of substantive patent law; and the possible development of the European Patent "bundle" as the basis for a Community Patent. The author tackles squarely the question of language. He quotes Commissioner Bolkestein"s view that a Community Patent which has to be translated into every European Community language is "unusable". Already the experience of the European Patent system is one of heavy costs largely attributable to translation and related matters. In the author's view, "English is clearly the dominant language, and others will simply have to take a back seat". To mitigate the possibly harsh effects of this proposal on those who commit "innocent infringement", European Community rules on substantive patent law should include the subjective aspect of infringement and take lack of linguistic knowledge into account. The article concludes with comments on the effects which the author's proposals would have on litigation and on the role of national patent offices. [20094]