Community Patent Developments

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Patent protection in Europe is provided by the European Patent Convention. European patents covering 34 European states are available from the European Patent Organisation, which is an intra governmental organisation independent of the European Union.

However, for coverage extending any further than the basic "Tier 1" states of the London Agreement, France, Germany, United Kingdom, Malta, Switzerland, Liechenstein and Monaco, Ireland and Iceland,  foreign language translations still need to be filed at the end of the European patent application procedure, which adds significant cost, typically one or two thousand Euros per additional country.

Consequently, using the present system, few patent owners take out full EU wide protection using the existing EPC patent. However, for coverage extending any further than the basic "Tier 1" states of the London Agreement, France, Germany, United Kingdom, Malta, Switzerland, Liechenstein and Monaco, Ireland and Iceland, there still needs to be filed foreign language translations at the end of the European patent application procedure, which adds significant cost, typically one or two thousand Euros per additional country. Consequently, using the present system, few patent owners take out full EU wide protection using the existing EPC patent.

For more than 25 years there has been proposed a full EU wide patent, the "Community Patent" which would provide a uniform EU wide right automatically effective in all EU states. This holds out the prospect of full EU wide patent protection in a single process. However, historically the issue of translations has plagued the Community patent system, just the same as the EPC system. Since the EPC system is already up and running and the Community system is not, as long as the translation issue has been present in the Community patent, along wih its associated costs, then the Community patent has been commercially dead in the water and of academic interest only.

Another legacy of previous pre European Union national patent syatems is that each country in Europe has its own patent office, and after grant of a patent applies its own maintenance fees which are used to fund the operational costs of the national patent offices. The existing European Patent retains this traditional fee payment system. Under the EPC, the national patent offices in each EU state still collect renewal fees, at the end of the European Patent grant procedure. Renewal fees are payable annually in each state where the patentee continues their patent protection - multiplying maintenance costs compared to paying a single renewal fee to one patent office, covering all states.

There has been resistance from both the national government patent offices and from professional bodies of patent attorneys in individual EU states to changing the present system, since any changes for streamlining the system are likely to result in lower costs to the patentee in the form of reduced translation costs and reduced renewal fees, which are an important source of revenue for both national patent offices and patent attorneys. Getting consensus on structural changes to the system is hampered by vested interests within the present system, which means that progress towards a cheaper and more unified Community patent system has been slow.

However, in a new development, the EU council have recently agreed further next steps towards the Community (EU) patent system. At the last Competitiveness Council on December 04, 2009, ministers have agreed on a draft regulation on the EU Patent (the new name for the Community Patent) the main thrust of which is that the EU will accede to the European Patent Convention and the European Patent Office will grant EU patents which have unitary effect across the whole of the European Union.

This represents a major step forward, since it merges the previous Community Patent into the present successful European Patent Convention system.

At present the problematic issue of translations has been glossed over in the new regulation as being something to be sorted out later. The issue of renewal fees has been partly addressed, in that a proportion of the renewal fees payable on the EU patent will be shared amongst the national states, with up to 50% being kept by the European Patent Office.

Although unlikely to lead to a unified patent system in the European Union any time soon, the rate of progress on harmonisation of patent procedures both in the EPC system and the EU Patent system is now accelerating. Costs per state continue to reduce, primarily due to the breakthrough impetus of the London Agreement on translations at the end of the existing European Patent. Although still some way off, a unifed EU Patent is now looking a realistic prospect within the next decade, with the associated reduced costs for patenting in Europe which such a system is likely to bring.

For further information, or to file a European Patent Application, contact one of our team of European Patent Attorneys.

Article Published December 29, 2009