[Ip-health] News: Mondaq.com- Germany: Enhanced Patent System in Europe
Marine at haieurope.org
Thu Oct 28 05:33:37 PDT 2010
Germany: Enhanced Patent System in Europe
26 October 2010
Article by Karsten Brandt
On December 4, 2009 the Council of the European Union adopted
conclusions on an enhanced patent system in Europe.
These conclusions partly reflect the steps which have already been taken
towards a European patent system, partly contain an agreement on the
basic structure which a European patent system should have, and partly
outline the agenda for the realisation of an enhanced patent system in
The European patent system shall stand on two pillars:
The first is the grant of a European patent which is at the same time
valid in all member states of the European Union.
The second is a European Patent Court (EEUPC) which shall have
jurisdiction over infringement as well as validity.
II. The Grant of European Patents
With the entry into force of the Treaty on the Functioning of the
European Union (TFEU) (Lisbon treaty), the European Union replaced and
succeeded the European Community and has been endowed with legal
According to the plan, the legal personality of the European Union shall
become a member of the European Patent Convention and the European
Patent Office shall be competent to grant patents for the EU.
This concept involves agreements and regulations on different levels.
One level is the European Union and its members states; the other level
is the European Patent Organization, which has member states which are
not members of the European Union.
1. First level: Council Regulation on the European Union Patent
According to the plans of the Council of the European Union, a European
Union patent regulation is planned which shall govern the highly
disputed translation arrangements for EU patents.
This regulation shall be adopted by the Council with unanimity in
accordance with Article 118, second sub-paragraph of the Treaty on the
Functioning of the European Union.
A draft of this Council Regulation on the European Union Patent of
November 27, 2009 already exists.
According to this draft (Art. 2, par. 1), the European Patent Office
plays a central role in the administration of EU patents, and would
alone be responsible for examination of applications and the grant of EU
2. Second level: Revision of European Patent Convention
The planned access of the EU to the European Patent Convention implies a
revision of the European Patent Convention, which has to be settled in a
diplomatic conference. The revised European Patent Convention needs to
be accepted by all 36 member states.
Note that the amendments of the "European Patent Convention 2000" have
already lasted for more than seven years.
If this plan is realized, the European Patent Office would be competent
to examine and grant European patents, which are bundles of national
patents as well as EU patents which are at the same time valid in all
countries of the European Union.
There is actually no "road map" for this diplomatic conference.
III. Validity and Infringement
It is planned that a European and EU Patent Court (EEUPC) will be
established having jurisdiction over the validity and infringement of
European patents as well as EU patents.
The European and EU Patent Court shall be established by a "mixed
agreement". On one side, the agreement has to be accepted by the member
states of the European Patent Convention which are not members of the
European Union (for example, Switzerland). On the other side, the
competence to negotiate this agreement shall be shared between the EU
and its member states.
The establishment of a European Civil Court which has jurisdiction over
specific aspects of civil law is new in Europe. Since it is not clear
whether this concept is in conformity with the existing European
treaties, the Council submitted a request to the European Court of
Justice (ECJ) in June 2009 for review of the compatibility of this plan
with the EU treaties. The judicial review of the European Court of
Justice takes place before the conclusion of the agreement, and is given
in the form of an opinion. The opinion is expected at the earliest by
The Court shall have a First Instance and a Court of Appeals as well as
a Registry. The Court of First Instance shall have a central division as
well as local and regional divisions.
The European Court of Justice shall ensure the primacy of EU law and its
uniform interpretation. All details about the composition of the courts,
the language of the proceedings and the competence of regional and
central chambers are highly disputed in the interested community.
IV. Future Outlook
The concept of an enhanced patent system in Europe as it stands now is
fairly ambitious. Many serious hurdles have to be overcome. The planned
amendments to the European Patent convention may take several years,
because the amendments require the participation of all 36 member
The same applies with regard to the court system and the planned "mixed
agreement". It involves the participation of non-EU member states and
will require their willingness to transfer sovereign rights and submit
their industries in important aspects to the jurisdiction of an EU and
European Patent Court. It is hard to evaluate whether the EPC member
states which are not EU member states - Albania, Switzerland, Croatia,
Iceland, Liechtenstein, Monaco, Macedonia, Malta, San Marino and Turkey
- are willing to do this.
The willingness of the EU member states, however, is not much easier to
evaluate when it comes to the details. This applies despite the fact
that the Council of the European Union came to the above mentioned
In summary, it appears to be rather uncertain whether the planned
concepts can be realized within the next few years.
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