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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    66. Professor Cornish considered that Article 235 of the Treaty gave the Community a legal basis for action and thought that “As the means for altering authority over the future European patent system, and for placing it under an acceptable management structure, such a Regulation seems the only sensible way forward”. He also pointed out the implications for the Community's external competence: “One consequence [of a Regulation] would be a simplification in Europe's dealings in patent matters with the rest of the world, whether this consists in the negotiation of treaties at the international level, or the conduct of discussions with major trading countries, such as the US and Japan” (p 89). The Patent Office acknowledged that there was a political issue for Ministers here (Q 287). THE IMPLICATIONS FOR THE DEVELOPMENT OF PATENT LAWS AND POLICY AT NATIONAL AND INTERNATIONAL LEVEL 67. The CBI also said that further harmonisation was desirable, and necessary on the right terms, but not inevitable (p 32). Mr Nott pointed to the different procedures and arrangements for patenting in the United States and Japan and said that some harmonisation at the international level might be helpful. He thought that that was probably a long way in the future (Q 202). 68. IPLA said that further harmonisation in both substantive patent law (such as in relation to “special defences” to infringement, and available relief) and procedure (IPLA strongly advocated cross-examination) would at least be desirable, and might be necessary, if a truly effective unitary patent system was to be achieved (p 103). For CIPA, Mr Gold said that one of the aspects of the Community patent which had not received sufficient attention was the need to harmonise national litigation procedures “to ensure that there is technical efficiency at all levels of the process; that there is roughly similar speed; roughly similar remedies; damages would be roughly at the same level”. All these matters were currently replete with uncertainties (Q 73). CIPA did not believe that other European countries would accept the English approach to discovery and examination of witnesses. Mr Gold said: “I hope there could be a process whereby we would each realistically take the best features of each other’s procedures, and some sort of compromise would emerge which would be the least unhappy compromise” (Q 103). 69. LES thought that harmonisation at European level might influence patent systems elsewhere, in particular in the United States and Japan, and result in greater international harmonisation. This, in LES’s view, would be desirable, though not inevitable in the light of the experience of the European Patent Convention (p 19). A number of witnesses pointed to the desirability of wider international harmonisation. The Law Society of Scotland said that there was a need for harmonisation at a worldwide level “on what is or is not patentable and on the point at which information on patents is published” (p 107). Zeneca also said that the Community must have the same criteria for patentable subject matter as enjoyed by the USA and Japan. Further harmonisation of procedure was also to be encouraged (p 38). In particular there was, in CIPA’s view, a need for US laws with their “first to invent” system to harmonise with those of the rest of the world which have a “first to file” system, though neither CIPA nor LES was optimistic that the Americans would accept any change (p 16, Q 105). 70. The TMPDF expressed similar views and drew attention to the fact that Member States already worked together on intellectual property issues, particularly in international fora such as the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO) (p 36). The Patent Office favoured harmonisation at a global level. The work was, therefore, best left to WIPO, which was presently working on a Patent Law Treaty aimed at limiting the formal requirements which patent offices across the world might require of applicants (QQ 269, 276). RELATIONSHIP BETWEEN ANY COMMUNITY INSTRUMENT AND THE EUROPEAN. PATENT CONVENTION 71. It was generally accepted by witnesses that there would have to be links between the two systems. For the Patent Office, Mr Hartnack said: “in theory the Community system could be administered ... by national patent offices within a harmonising regulation. As a matter of practicality, I think we should assume it will be administered by the European Patent Office”. He
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