The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities.

  • Great Britain. Parliment. House of Lords. Select Committee on the European Communities.
Date:
1998
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Licence: Open Government Licence

Credit: The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities. Source: Wellcome Collection.

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    {Chairman Contd] be an intermediate step and one which is more easily achievable than setting up a major new jinstitution. 258. If one did that, then those patent judges sitting on the Board of Appeal in Munich would still be dealing only with opposition proceedings, in effect, would they not? (Mr Hartnack) Exactly so, yes. 259. You would still have problems as to where you dealt with the validity of European patents? (Mr Hartnack) Yes. The view of our Standing Advisory Committee is that it is important, if we can achieve it, that both validity and infringement are dealt with in the same forum. 260. Therefore ..... (Mr Hartnack) Quite so. These things take time, though, my Lord Chairman, and as I said at the very beginning, it has been 25 years that Europe has been discussing a Community patent. We have had these two fundamental difficulties. Therefore, I suppose the response I am giving you is that if in the next, say, five years we can make some progress in an almost informal way in this area, it will be helpful to European industry. Baroness Elles 261. I think you said that language was one of the two problems which arose with regard to setting up a Community patent system. I think we have had quite a lot of evidence that English is now believed to be the possible language which will be acceptable right across the board. Is that correct, and do you see that as a possibility for at least dealing with that particular problem? (Mr Hartnack) The position is that about 70 per cent of all patent applications made in Europe are filed in the English language, and I believe that about 20 per cent are filed in German and 10 per cent are filed in French. It was certainly the position at the Luxembourg hearing on the Community patent, which was held last November, that representatives of European industry suggested to the Commission— including representatives of French industry—that they would be prepared to accept English as a common language for patenting in Europe, certainly as far as the procedures are concerned. So the idea was that people might file in their own language, but thereafter all the procedures would be in English, and this would save a lot of money. The difficulty is that that view on the part of European industry was not shared by government representatives at the conference, and it is my view that it remains a major obstacle. Chairman 262. Various proposals have been put to us that if we cannot have one language can we have three languages, like the proceedings in the Patent Office, or can we have only bits which have to be translated— say, the claims rather than the whole specification—or can we delay translation until a later stage. Do any of those seem to you to be feasible? (Mr Hartnack) | think I would like to preface my remarks by saying that of course it would be nice if people could accept the inevitable logic of English! Baroness Elles 263. It does not seem to be inevitable, though. (Mr Hartnack) The situation is that a number of states in Europe take the position that there is a constitutional objection—not just patent law but a constitutional objection—to anything other than an absolute and complete translation of the terms of a monopoly granted in one’s country. Other states take a less fundamentalist view and argue that there is a problem in particular for small firms who might unwittingly find themselves hauled into court for infringing a patent for which they only had perhaps an enhanced abstract. As far as the United Kingdom is concerned, I think we would be very happy if English were the sole language. I think we would be profoundly unhappy if English were not the sole language and it were another one of the various European languages. Chairman 264. I was just trying to imagine what some of our newspapers would say if some English manufacturer were brought into court for infringement of a patent which was available only in German. (Mr Hartnack) Quite so. This is the difficulty. As far as the enhanced abstract is concerned, this is an idea which the European Patent Officer put forward. From the point of view of patent professionals, that would probably be sufficient. We already work with online searches of databases which give us, for example, abstracts of Japanese patents in English. They are considered sufficient for us as professionals to do our work on search and examination. The difficulty is for small firms. So one has this spectrum of constitutional objections and almost philosophical objections in terms of the role of small firms in the innovation process to anything other than full translation. If I can pick up your point, it might be that the first step towards reducing costs would be to revert to the position which existed when the European Patent Convention was signed in 1973, which was a three-language solution. Lord Wigoder 265. My Lord Chairman, I ought to know the answer and I do not. Would unanimity be essential for a decision on these issues? (Mr Hartnack) For a regulation to harmonise on the translation issue or the legal issue, unanimity would be required in the European Union. 266. Do you see the slightest prospect of that, in view of what you have said? (Mr Hartnack) | think it may take quite a long time, my Lord. There are all sorts of possibilities which have been floated in this area, and they are all with their different difficulties. For example, my Swiss