Improvement is needed

Today, patent protection can be obtained in several European countries by filing one single patent application at the European Patent Office (EPO). Such applications are processed centrally by the EPO, who issues "European patents". However, such European patents will only receive legal effect in the different European countries after translation of the patents into the national languages of all the countries where patent protection is desired. Thus, the current system does not offer real unitary patents, but only several national "European patents".

Disputes about validity or infringements of European patents must be determined by the national courts in the various countries where patents have been issued. Questions of validity must be determined separately in each of the countries where patents are issued. This is one of the reasons why it can often be necessary to commence legal proceedings for similar infringements in all the countries where infringements are believed to have taken place. It can thus be extremely costly for both patentees and their opponents to clarify their legal position. In addition, there is a risk that the outcome of similar cases in different countries will differ.

It is an international phenomenon that research, development and patent activity of small and medium sized companies (SMEs) are relatively 30 % lower than that of larger companies. The SMEs point at the high costs of patent litigation as a significant reason for this situation. SMEs do not have the financial capacity to handle multiple lawsuits in different jurisdictions.

It is evident that Europe has an urgent need for easier and cheaper access to decisions in questions about validity and infringement of European patents.

Different ways to improvement

A Community patent and a centralised European patent court

The Community Patent proposed by the Commission in KOM(2000)412 has unitary character and would, when granted, automatically be valid across the European Union. Perhaps even more important, the Community Patent solution entails a centralised patent court with sole competence to decide in cases about validity and infringements of Community Patents.

The negotiations on the Community Patent ended in a deadlock in spring 2004. The negotiations were resumed after the Commission issued a compromise proposal in an communication entitled "Enhancing the Patent System in Europe" from April 2007 (see below). Denmark and The Danish Patent and Trademark Office are strong proponents of the Community Patent. We find it very regrettable that the EU member states have not yet been able to reach agreement on the Community Patent.

The European Patent Litigation Agreement (EPLA)

Parellel with the discussions on the Community Patent the member states of the European Patent Convention began discussions on the establishment of a court system for European patents outside the auspices of the EU - the so-called European Patent Litigation Agreement (EPLA).

The intention was to establish a new international organization called The European Patent Judiciary, which the contracting states could select as their national court in cases concerning validity or infringement of patents. In this way, the patent court's decisions would have legal effect in all the member states.

The EPLA offers a good solution to many of the problems in the present fragmented European court system. The Danish Patent and Trademark Office is a strong proponent of the EPLA. Ms Anne Rejnhold Jorgensen, Director of our International Affairs department, is chair of the Committee drafting the EPLA agreement. Due to the resumed negotiations on the Community Patent within the EU context the negotiations on the EPLA currently stands still.

The French proposal

France has proposed the creation of a unified court system which can deal with litigation in regard to both European patents and future Community Patents. The French proposal recommends the establishment of a specific Community jurisdiction for litigation in regard to European patents and Community patents which should make use of the jurisdictional arrangements in the EC Treaty. At this point in time, the proposal only consists in the form of a general outline; no detailed description has been drawn up as yet.

The Commission's compromise proposal

In April 2007 the European Commission issued a communication to the European Parliament and the Council entitled "Enhancing the patent system in Europe" - COM(2007) 165. The communication comprises a compromise proposal for a European patent court which combines features of both the EPLA and a Community jurisdiction as initially proposed by the Commission. On the basis of the Commission's communication the Council's Working Group on Intellectual Property Rights (patents) has begun to explore the possibilities for establishing a common European patent court and a Community Patent in a longer series of ongoing meetings.

What solution should Europe choose?

Owing to the Commission's above mentioned communication from 2007 the EU member states have reopened the debate about what solution should be chosen as the means of enhancing the european patent system.

The Danish Patent and Trademark Office is strongly committed to improving the accessibility and efficiency of Europe's patent system and generally streamline it. A common European litigation system, which would reduce the costs and increase the system's efficiency, could play a key part in making the patent system more accessible. Therefore, the first and foremost priority for us is to find a solution that can quickly improve the patent litigation system in Europe.

Questions

If you have questions concerning the work on improvement of the European Patent System, you are welcome to contact either Anne Rejnhold Jørgensen, Lars Holm Nielsen or Barbara Suhr-Jessen.

Last update: 29 July 2008

Contact us

Do you wish to receive more information about our work? Fill out the form and we will get back to you as soon as possible.

For more general questions you can also get in touch with us on +45 43 50 83 01 or via mail on pvs@dkpto.dk