Editorial: The Struggle to devise a Patent System for the European Union (26 DEC 02)

To those accustomed to the European Patent system, run by the European Patent Office in Munich and supported by countries, not all of which are Member States of the European Union, it may seem strange that there should be so much fuss about the creation of a special patent system for the European Union as such. Given the fact that European patents are available, the creation of a European Community Patent may seem unnecessary. The rationale is political and economic. Since the European Union (through the European Community) is largely about the establishment of a single market, there should in principle be a single patent system for the European Union, in which patents should be valid throughout the territory and not confined to a selection of the Member States.

With this rationale in mind, the Member States signed the Convention establishing a system of European Patents for the Common Market, or Community Patents, as they are more generally called. The system is based on the concept that, while the patents are granted by the European Patent Office, they are subject to special rules, the main effect of which is to give the patents legal recognition in all the Member States of the European Union. In the view of the political and official supporters of the system, this will simplify matters for patentees and help to further the integration of trading activities within the single market. However, the Convention, though signed by all the Member States, has never been ratified. Even the sensible proposal for introducing the system in the more flexible form of a Regulation under the Treaty establishing the European Community has failed to command the necessary support for final adoption.

So far, the ratification of the Convention and, more recently, the proposal for a Regulation have foundered on a number of practical points, of which the most important have been the costs of granting the Community Patent and the languages to be used in the process. Other problems have arisen, including the question of jurisdiction; but these have not been so intractable. At the same time, industrial interests, though not opposed to the general concept of the Community Patent, can scarcely be described as wildly enthusiastic; and, since they are the potential customers for any new system, their voice needs to be heeded. It came as no surprise to those who had followed the progress of the Community Patent proposals over the last thirty years when the Council, the final legislative body in the European Union, was unable (in December 2001) to reach agreement on their adoption.

For some commentators, the Council's inaction has seemed reprehensible. For example, Jan Williams, in an article in IIP, Vol 3 No 5, 2002, is critical of the Council for its failure to adopt "a courageous and very necessary initiative of the Commission", that is, the Commission of the European Communities in its role as the proponent of the Regulation in question. He speaks of the "short-term, nationalistic interests as perceived by a short-sighted, not to say myopic, Council have taken preference [sc. precedence] over a real European vision". He goes on to make some practical suggestions for making the current proposals more palatable to the European Union's legislature: these include special agreements committing individual Member States to some or all features of the system, including partial agreements on the Litigation Protocol and on the Protocol on Cost Reduction.

However, although these suggestions are more constructive than the hand-wringing which some commentators have exhibited, they are ultimately unsatisfactory. As the author concedes, the solution he proposes has a somewhat "patchwork character". In this it resembles some of the proposals made during the past twenty years or more for - in effect - creating exceptions from the unitary rule of law; only, in earlier years, the idea of a patchwork was often expressed as the "Swiss cheese", in which there were simply too many holes. Or, to put it another way, the whole point of creating a unitary patent system for the European Community could be undermined if the system is expressly allowed to be something less than unitary in practice. (The European Union's failure to enable the single currency to coincide with the single market is not a good precedent.) But, ultimately, the justification for supporting the Community Patent system lies in its attractions to patentees; and, unless the costs are competitive, and the language problems substantially simplified, the attractions are going to be elusive.