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The EU Embraces Enhanced Cooperation In Patent Matters: Towards A Unitary Patent Protection System

Published online by Cambridge University Press:  20 January 2017

Enrico Bonadio
Enrico Bonadio*
Affiliation:
City University London. The author may be reached at
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Extract

On 13 April 2011 the Commission tabled a package of two legislative proposals implementing enhanced cooperation in the field of unitary patent protection and translation arrangements. Such proposals have subsequently been agreed upon by the EU ministers in an Extraordinary Competitiveness Council on 27 June 2011. Patent protection is indeed key to the European Union (EU) and constitutes a priority in EU institutions’ agenda, as it is capable of stimulating innovation and competitiveness.

Type
Reports
Information
European Journal of Risk Regulation , Volume 2 , Issue 3 , September 2011 , pp. 416 - 420
Copyright
Copyright © Cambridge University Press 2010

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References

1 Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain have joined the initiative so far. These states were authorised by the Council to proceed with enhanced cooperation on 12 July 2010. Subsequently, the Council Regulation 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation was adopted.

2 See the Commission's proposal for a Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, 13 April 2011, p. 2.

3 Thus the validation phase is necessary for the granted patent to be effective in any EPC Contracting State(s) where protection is sought. In order for the European Patent to be validated nationally, applicants must meet validation requirements in each designated state by a specific deadline, i.e. three months after the patent is granted by the EPO. The validation phase differs in each state, but generally requires the payment of a fee and the translation of either the claims or the entire patent specification.

4 The entry into force of the London Agreement was meant to reduce translation-related costs. This treaty was adopted in October 2000 by an Intergovernmental Conference of the EPC Contracting States. It sets forth an optional mechanism which aims to reduce the translation costs of European patents. Yet, even after the entry into force of this treaty on 1 May 2008 in fourteen EPC Contracting States (of which ten are also EU Member States), obtaining a European patent still remains several times more expensive than a US patent: see the Proposal for a Council Decision authorising enhanced cooperation in the area of the creation of unitary patent protection, 14 December 2010, p. 16.

5 Under the current system, the maintenance of a patent in all the twenty-seven Member States for all the twenty years of protection would reach an estimated sum of Euro 200,000: see the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions, 24 May 2011, p. 7, available on the Internet at <http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_en.pdf> (last accessed on 3 June 2011).

6 Customs Regulation 1383/2003, the full title of which is Regulation concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.

7 See the Proposal for a Council decision, supra note 4, pp. 11 and 15.

8 Article 329(1) TFEU provides inter alia that it is the Commission that may submit a proposal of enhanced cooperation to the Council in one of the areas covered by the Treaties.

9 See Recital 4 of the Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection.

10 The EPO would then be entrusted with (i) handling patentees’ requests for EU unitary effects, (ii) carrying out the relevant entries and (iii) collecting the relevant fees.

11 See Article 12 of the proposed Regulation for unitary patent protection.

12 See also Article 4(1) of the proposed Regulation for unitary patent protection.

13 See Article 5 of the proposed Regulation related to translations arrangements and Article 12(f) of the proposed Regulation on unitary patent protection.

14 See Recital 11 of the proposed Regulation related to translation arrangements.

15 See Article 4 of the proposed Regulation related to translation arrangements.

16 See the FAQ document drafted by the European Commission and available on the Internet at <http://europa.eu/rapid/pressReleases-Action.do?reference=MEMO/11/240&format=HTML&aged=0&language=EN&guiLanguage=en> (last accessed on 11 May 2011).

17 See the Proposal for a Council decision, supra note 4, p. 10.

18 See the Proposal for a Council decision, supra note 4, p. 8.

19 For a brief comment of Advocate General's opinion in this case see Bonadio, Enrico, “ECJ Advocate General Rejects EU Patent Litigation Scheme”, 5(12) Journal of Intellectual Property Law & Practice (2010), pp. 286–287.CrossRefGoogle Scholar

20 See Annex II “Solutions for a unified patent litigation system – The way forward after the opinion 1/09 of the ECJ – Non-paper of the Commission Services” to Document 10630/11 of the Council of the European Union of 26 May 2011, available on the Internet at <http://register.consilium.europa.eu/pdf/en/11/st10/st10630.en11.pdf> (last accessed on 2 June 2011).