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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    ka Ca SE ie es iS I hen te we ees 7 = alleen de RP ee Lae 4 February 1998] [Continued i stimulated. That such advantages stem from having sound patent systems is apparently not always understood by national governments. There only would be disadvantages if a unitary patent was introduced in a fudged form in particular without a sound litigation system in place, without the translation issue properly dealt with and without preservation of the EPC and national routes for the foreseeable future. Advantages within the patent system itself which, of course, manifest themselves in the stimulation of innovation, are explained more fully when answering later questions. Q6. Would the Community Patent System as devised in the Luxembourg Convention be used if it were to come into effect (i.e., if all necessary ratifications were made)? No. The Luxembourg Convention has serious defects, in particular the procedure for litigation and the cost of translations into all the Community languages. What are the weaknesses or defects of the Luxembourg Convention? Are the main/only problems those described in the Green Paper (translation costs and judicial arrangements)? Judicial arrangements The system proposed in the Luxembourg Convention is inadequate: too uncertain, too slow and too costly and the risks of poor judgments are too great. The Institute cannot emphasize too much that sound judicial arrangements are crucial to the success of a unitary system and are much needed in the present systems in which patents are granted either by the EPC route or by national routes. Legal certainty ought to be easier to achieve in a Community system than in the complex of national systems. Legal certainty is itself an important factor in reducing distortion of competition and achieving free movement of goods. Consumers and industry of all sizes need innovation, and innovation is hindered and distorted if decisions and remedies etc., on patent issues are going to turn on the country in which the patent is litigated. Faced by advice that a product does not infringe a competitor’s patents in countries A, B and C but will infringe the exactly equivalent patent in country D, a firm interested in supplying the whole of the Community will not launch such a product. It may well go for a less innovative product for Europe whilst perhaps launching the innovative product in a market with less uncertainty. Europe needs a quick, reliable system. Sound judgments and predictability, so that litigation can be avoided, are needed. These need to be coupled with adequately low costs, speedy procedures and effective remedies. Such a quality litigation system is essential to a unitary patent system. A possible system could be a central, possibly peripatetic, collegiate Community Patent Court, composed of a panel of expert patent judges and including at least one judge from the state in which the action was started. Any such court would have to establish a common procedure and preferably common remedies. (Note that the adequacy of remedies is a major issue in relation to conformity with TRIPs.) If the costs of fighting an action before such a court are unacceptable to SMEs, then an option needs to be provided which is acceptable and can be used by large companies, who also have to be very cost-conscious. Such an option would have the incidental advantage that it could relieve a court of the type outlined of the pressure of the amount of litigation with which it might otherwise be confronted. It cannot be beyond the ability of man, certainly not of judges, to devise such an option. On language, we can learn from the examples of other courts and tribunals. In the interest of lower costs, the language probably should be an official language of the country concerned or a language agreed by the parties. The Institute considers that validity and infringement should be considered by the same court. The Institute has doubts whether the EPO Boards of Appeal, at least as presently constituted, should give final decisions. In a parallel exercise, it would be appropriate to consider how to improve the current litigation system for patents in Europe. Translation The costs associated with the system as set out in the Luxembourg Convention are horrendous and of course would expand with expansion of the Community. The issue of translations is one of the two main hurdles in the way of a successful Community patent. Although costs are a major concern, the procedural complexity and the risk of loss of the patent if a translation is not filed are also very important.