European patents are presently granted by the European Patent Office (EPO) under the European Patent Convention (EPC), but they remain expensive for patent seekers, roughly ten times as expensive as an American patent. This expense is due in large part to translation costs that must be incurred for patents to be recognized in various countries. These translation requirements have recently been lowered as a result of the London Agreement, but still nearly 75% of the cost for the acquiring typical patent is from the need to have it translated into various languages. Additionally, the current European patent is essentially a bundle of patents, which must be registered, renewed, and enforced at the national level. To remedy problems with the European patent, there has long been discussion about creating a single, centrally enforceable unitary European Union Patent (EU Patent). However, consensus among member states for creating such a system has been impossible to attain, delaying various attempts to make the EU Patent a reality. In the past year, new movement has been seen culminating at the December 2010 meeting of the Competitiveness Council.
In December 2009, unanimous agreement was finally found for creating a specialized patent court system, which would include a common court of appeals, and a single EU patent, which would grant intellectual property rights across all European Union member states. However, agreement over a method to bring down translation costs for the EU patent had not yet been found. The proposed translation arrangement would allow for the EU patent to be issued in English, French, or German – the working languages of the European Union.
During 2010, suggestions were fielded in an attempt to find agreement for the translation system, including one from the European Union’s Internal Market Commissioner Michel Barnier in July 2010. Mr. Barnier’s proposal would have allowed countries where English, French, or German were not among the official languages to file in their an official language with subsequent translation into English, French, or German to be reimbursed by the EPO. However, Italy was unyielding, accusing the European Commission of linguistic discrimination. Throughout the fall of 2010, discussions about the languages of translation continued with the hope of finding a compromise. These ended with a final attempt at compromise during the Competitiveness Council meeting in November 2010 after which the Belgian presidency released a statement saying, “[w]e have left no stone unturned…[h]owever, in spite of the progress made, we have fallen short of unanimity by a small margin.” In the end, both Spain and Italy refused to compromise, remaining adamant that any EU Patent must also be translated into Spanish and Italian to avoid discrimination.
At a meeting of the European Union’s Competitiveness Council on December 10, 2010, the ministers of eleven member states – Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Slovenia, Sweden, and the UK – announced their mutual agreement to implement the EU Patent through enhanced cooperation. Enhanced cooperation allows member states that wish to establish closer cooperation with each other to work together. It is meant as a last resort when European Union member states as a whole cannot reach agreement within a reasonable amount of time. Under the Lisbon Treaty, at least nine member states must agree to enhanced cooperation. Now, the European Commission has approved the enhanced cooperation has requested a Council of Ministers vote by qualified majority authorizing the enhanced cooperation of twelve member states – the original eleven plus Poland. If authorized, all members of the Council may participate in any deliberations concerning the implementation of the EU Patent, but only those member states participating in the enhanced cooperation may vote. The enhanced cooperation agreement remains open for any member state to join at a later time. Mr. Barnier hopes the whole process will be concluded by the end of 2011. Both Italy and Spain continue to oppose initiating enhanced cooperation; however, the Hungarian delegation, currently holding the European Union presidency, have expressed their commitment to finding an agreement on the EU Patent issue as soon as possible.
In response to the proposal for enhanced cooperation, Belgian Minister for Enterprise and Simplification Vincent Van Quickenborne said that the agreement meant “that in the future the cost of a European patent will be reduced by a factor of 10, and the result will be that the cost of a patent in Europe will be competitive and comparable to that of the cost in the United States and Japan, and this will of course greatly benefit competitiveness in our industry.” However, Mr. Van Quickenborne might be too optimistic. No opinion has yet been issued by the Court of Justice of the European Union as to the legality of the proposal for a European Jurisdictional System for Patents, so questions still remain as to where and how EU Patents could be enforced. Without this, a least part of the purpose of the EU Patent is undermined. Regardless, the recent movement for enhanced cooperation means that the EU Patent will remain central to European Union political debates throughout 2011.