Developments in the creation of a single EU Patent System stalled – Again.

Patently BIOtech

By Catherine McLoughlin, specialist solicitor for Biotech and Pharmaceutical Companies, Pannone LLP

Catherine Mcloughlin

Catherine Mcloughlin, Pannone LLP

After 40 years of squabbling it was hoped that the European Union was close to finally establishing a single patent system. Following a decision ending six months of stalemate from the European Council on the location of three patent courts the European Parliament has refused to put the proposal for a single European patent to a vote. This brings further delays to the creation of a single system.

Since 1973 European leaders have been pushing for a single patent system, which would enable companies to make a single application for a patent and receive protection across all 25 EU Member States, to replace the complex patchwork of patent laws that companies have to negotiate in order to protect their inventions in each member state, a process which, because of translation and enforcement fees is both time consuming and costly.

Currently, the basic cost for an EU patent is around 3985 EUR, this is for the Filing, Searching, Designation and Examination of a patent. Legal fees are likely to bring the cost closer to 8000 EUR and the European Patent will then have to be validated in individual countries sending the cost spiralling further, particularly if translation is required. As a single European patent system will be cheaper and less burdensome for Small and Medium Enterprises, the hope is that there will be greater support for innovation and boosting growth and competitiveness.

To achieve the single system it has been debated whether it will be necessary for only a single Unified Patent Court to exist and, of course, there has been much discussion over the location of the seat and functions of this Court.

Earlier in July a compromise was issued by the EC; it was decided the “central” court would be divided between Paris, which will be the seat of the court, Munich which will opine on cases involving mechanical engineering and London where the court will deal primarily with chemistry including pharmaceutical and biotech cases. The decision had been heralded by those in industry as it plays to the strength of German automotive industry and the UK’s leading expertise in life sciences.

It remains to be seen how the various different systems in the various different European countries will be melded together to form a single European system. Germany for example has a system whereby it decides on infringement and validity in two different courts, a so called “bifurcated” system. The UK does not. Other matters such as costs and the crucial matters of process and enforcement remain to be clarified over the coming months. Spain and Italy have already opted out of the agreement, a move that sceptics are arguing shows the hyperbole involved in the claim that costs would be reduced by 80%.

The European Parliament has also rejected proposed regulations that would have allowed intellectual property litigants to refer their claims to the Court of Justice of the European Union. The use of the ECJ had been criticised by lawyers as a forum inadequately equipped to deal with complex patent cases. Instead, such claims will be made in one of the three new courts.

This most recent piece of manoeuvring, the refusal to put the single system to a vote, by the European Parliament will cause further delays, undoing the developments achieved in deciding on the location of the courts.

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