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
Catalogue details

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.

    29/144 (page 27)
    Convention or regulation? 97. The Green Paper noted that the European patent system in Europe (i.e. the EPC and the Luxembourg Convention) was set up by means of international agreements. This was, according to the Commission, because the Community’s competence in the field was then not clearly established. The legal position, it said, had changed and the Green Paper raised the question of the establishment of a Community patent system by way of a regulation under Article 235 of the EC Treaty. Such a regulation would require unanimity but would have the advantages of having a fixed date of entry into force and being simpler to deal with in future enlargements of the Community since it would automatically be part of the acquis communautaire. 98. Witnesses generally accepted that the Community had the necessary competence under the EC Treaty. The question, we agree, is not now a matter of dispute. The Court of Justice has held that the Commission is competent, in the field of intellectual property, to harmonise national laws pursuant to Articles 100 and 100a and may use Article 235 as the basis for creating new rights superimposed on national rights, as it did in the Community Trade Mark Regulation.’ 99. On the question whether further Community action should be by way of regulation or convention, the majority of witnesses supported the idea of a regulation under Article 235 as the basis for any Community patent regime for the reasons given in the Green Paper. While the Committee agrees that those reasons are valid ones, there are two further factors affecting the choice of the appropriate legal instrument. First, there are the implications for the judicial arrangements. Use of a regulation alone would seriously limit the opportunities for innovation. A regulation would enable existing mechanisms to be used (the Green Paper’s suggested use of the EPO Boards of Appeal and the Court of First Instance for questions of validity—a similar structure has been adopted in relation to the Community trade mark) but would not permit the creation of a new Community patent court or courts. For this there would have to be a Convention and/or revision of the Treaties. As we have indicated above the creation of a system of supranational pan- European Community Patent Courts will inevitably have major implications for the Communities’ judicial architecture. 100. Secondly, it is necessary to consider the effects as regards the external competence of the Community. As the Court of Justice has made clear, the existence of provisions in the Treaty, in particular Articles 100a and 235, which give the Community power to act in relation to intellectual property does not confer exclusive competence on the Community”’. The exercise of those powers by the adoption of a regulation would, however, increase the competence of the Community in international fora such as the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO) and consequently restrict that of the Member States. The Patent Office acknowledged that this was a question to which Ministers would have to give some attention. The Committee agrees. 101. Finally, it must be remembered that proceeding by regulation, rather than convention, does not overcome the major political issue of securing agreement on the proposal, particularly on the sensitive matter of the use of languages and translations. Unanimity will be required. We do not underestimate the difficulties ahead. FURTHER HARMONISATION—THE EUROPEAN PATENT 102. Patent law is an area where there is already a substantial degree of harmonisation at both international and European level, from the Paris Convention of 1883 through to the GATT/WTO Agreement on trade-related aspects of intellectual property rights (TRIPS). Action at Community level has so far been limited to the creation of supplementary protection certificates for 12 Case C-350/92, Spain v. Council: [1995] E.C.R. 1-1985, at para. 23. Opinion 1/94: [1994] E.C.R. 1-5267. The matter arose in relation to the definition of the extent of the Community’s and the Member States’ participation in the TRIPS Agreement. 13