Eu Patent After All? Editorial.
The creation of the EU Patent (also known as the Community Patent) has been in a deadlock since 2002. However, some things have progressed. The London Agreement was accepted by the Finnish Parliament on 11th of March 2011. This will make patenting less expensive once the amendments to the Patent Act come into force, since an EP patent will not need to be translated into Finnish to become valid in Finland.
The remaining obstacle in the creation of the EU Patent System has been the question of the language of the patent. The Lisbon Treaty created a new possibility to proceed: closer cooperation between some of the Member States.
25 of 27 EU Member States proposed that the ”enhanced cooperation procedure” be used, with the aim of establishing a single patent that would be valid across the territory of the participating member states. The European Parliament consented to the use of this procedure on 15 February 2011 and the Council of the European Union authorized the enhanced cooperation on 10 March 2011. The enhanced cooperation will remain open for non-participating countries.
This means that EU is headed towards a patent system that may not include all Member States. At least Spain and Italy are likely to remain outside.
One vital part of the Community Patent has been the creation of a European Patent Court to handle issues concerning both the Community Patent and the European Patent. On 8 March 2011, the Court of Justice of the European Union gave its ruling on the agreement that was to create such a unified patent litigation system. The Court held that the envisaged agreement would not be compatible with the provisions of the EU Treaty and the FEU Treaty.
The Community Patent System was developed together with, and in a way inside of, the European Patent system. The litigation system was also intended to be mutual. To my understanding, the development of a patent system based on closer cooperation between the Member States will follow the outline of the former draft for Community Patent Regulation.
The unified patent litigation system was meant to be established in an agreement between the countries who have joined the European Patent Convention. The litigation system is not included in the draft Community Patent Regulation.
The creation of a well functioning Community Patent is widely supported among the EU Member States. However, the main goal is not the creation of the Community Patent in itself, but ensuring that it functions well. Care should be taken that the system now about to be born will not be too complicated or difficult to manage and interpret. Otherwise the original purpose of the Community Patent may be lost.
