Is there a Future for the European Community Patent?

Recently it was announced that EU Commissioner McGreevy would like to make “one more, last (emphasis on “last”!) attempt to create a low-cost EU Community Patent". See Financial Times, January 16

It also seems that the Commission has become less hostile to progress on the alternative for the Community Patent, the European Patent Litigation Agreement (EPLA). On 16 January 2006, the Commission confirmed details of its public consultation on improving the patent system in Europe.

Background

The latest draft text of the EPLA and other key documents can be seen at www.eplaw.org. The EPO website also has a goodish summary - but last updated 17 March 20005.

Recent Developments

1. A significant number of European patent judges made a statement in December 05 about the need for pan-European patent dispute resolution - in effect backing the EPLA in the absence of any progress on the Community patent.

2. The UK Patent Office recently published the UK Statement at the Working Party on Litigation (13 December 2005). Inter alia, this says that "While the Commission continues to believe that the Community patent is crucial, another issue to be considered is improvement of the existing framework of the European Patent Office, specially the litigation arrangements. Our intention is as soon as possible to reach a position where a text can be put to a diplomatic conference. For this purpose, the Commission and member states plan to hold one or two meetings to discuss the technical issues relating to Community involvement in the EPLA."

3. At the EPO meeting, the Austrian Presidency publically confirmed that a meeting to further the discussion on the negotiating mandate was planned in April. Informally, the Commission have begun work on the details. The first very brief discussion in Brussels took place on 21 December 2005, discussing what would need to be covered by a negotiating mandate. The EPO Council agreed to schedule sub-group meetings to make any necessary changes to fit around that mandate in Summer/Early Autumn 2005 and a decision on the date of a diplomatic conference should be made no later than next December's Council (possibly next October.)

4. On January 16, 2006 , the Commission issued a press release (IP/06/38) confirming details of its public consultation, which has a closing date of 31 March 2006.

The press release says that the consultation is on "how future action in patent policy to create an EU-wide system of protection can best take account of stakeholders' needs. While the Community Patent remains a priority, the Commission is also seeking views on what measures could be taken in the near future to improve the patent system in Europe. All interested stakeholders, including industry and individuals, are encouraged to reply."

The Commission, therefore, still clings to the goal of a Community Patent. However, in the light of the current inability of Member States to make any progress on it, the Commission is prepared to look at the EPLA as an alternative way to make practical progress on improving the patent litigation system in Europe.

So it seems that although the EU still has high hopes for the European Community Patent, the real future will show to be in the EPLA, whether McGreevy likes it or not. Political hurdles may have to be overcome for some Member States, but when McGreevy is finally convinced that the Community Patent is a dead end, he might throw in some more support for the EPLA .