Community Patent Closer to a Reality

Profession:Herbert Smith
 
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After nearly three decades of wrangling, the Council of the European Union Competitiveness Committee has finally reached a consensus that heralds a new patent regime. Agreement has been reached on a number of key issues relating to the Community Patent, bringing a cheaper European patent system a big step closer.

Background

The long-awaited Community Patent was proposed in the Community Patent Convention 1975 as a unitary patent effective across the whole of the European Union, as an alternative to national patents or a bundle of European patents obtainable under the European Patent Convention. The aim is to streamline the patent system and reduce the costs of obtaining European-wide patent protection.

Despite a draft Community Patent Regulation being circulated in 2000, it has proved difficult to obtain the necessary political consensus. The key stumbling blocks have been (i) language, (ii) the Community Patent's jurisdictional system and (iii) the role of the national patent offices.

Current consensus

The main features of the compromise reached this week are:

Patent applications may be submitted in English, French or German, with translations of the claims into all three languages. However, a patentee can chose to file in a different Community language with a translation, in which case the system will bear the costs of that translation. Upon grant the patentee must file a translation of the claims in all of the EU official languages.

A centralised Community Patent Court of first instance will have exclusive jurisdiction over invalidity and infringement proceedings. Cases will be heard before a panel of three judges (assisted by technical experts), and the court will be situated in Luxembourg. The details of the procedure to be followed by the court are not yet clear, for example, it is not known whether the Court will have the power to require discovery or make search orders.

The European Patent Office ("EPO") will be solely responsible for the examination and grant of Community Patents. National patent offices will have a relatively restricted role, in advising potential applicants and forwarding applications for Community Patents. In certain circumstances...

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