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.

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    4 February 1998] [Continued {Lord Borrie Contd] had in mind, when you mentioned five countries, actually to ask you whether you could say that the number five simply came off the top of your head or is five a typical number that applies, at the moment, and the other ten countries are not covered? I am wondering to what extent, in other words, the present European patent lacks coverage across the main body of the Continent. (Dr Reid) Five is a figure that gets mentioned, but you do get a very big spread from all 15 countries of the European Union being covered to perhaps only two or three. That would however be slightly odd, two or three, because of the break-even point for going for the national route, which still exists. Perhaps I should have made this point earlier, that we do now have two separate systems. One is the ordinary national route, you apply to your national Patent Office; and the other is to apply to the European Patent Office, either after an initial application nationally or directly. To get back to the question, Greece and Portugal fall out of the bundle much more readily than Germany, France and ourselves. If you are interested in toy bricks, you might go for Denmark. It is what is appropriate for a particular case. You look, as an applicant, to where your competitor manufactures. You also look at size of market. There is a curious point and an important point, that if a company is marketing throughout Europe, and its competitors also market only throughout Europe so are not interested in marketing only in two or three countries, then a bundle that only contains three states (or only two) is quite a sensible option. This is because if you are IBM or Unilever and your competitors are multi-nationals, and you are not worried—which they would be probably, but if you were not worried about activity country by country— you can inhibit, stop your competitors, get the reward of your innovation throughout Europe by only having patents in two countries. This is not very communitaire, but it has the desired effect. Chairman 22. Can you explain how that works. You have made a new product. You have patented it in the United Kingdom and France only. Your competitors start selling it in Germany. What then happens? (Dr Reid) To disclose my background, I was for many years Head of Patents at Unilever. A very interesting patent battle that came up to your Lordships is what is called the Nappy War, Procter & Gamble versus somebody else. Now, Procter were sued in 13 countries in Europe. They won, so they have told people, in eight, and lost in five. They have said to me that if they had lost in one they might have stopped marketing that product in Europe, throughout Europe, because they would not have wanted the difficulties of having a special product for that one country, a different old-fashioned product for that one country. So the complexity of our patent system, as it stands— be it national, by national Patent Offices, or national by bundle—in that case would have inhibited innovation, which would have been of benefit to our babies or our grandchildren’s babies. Lord Goodhart 23. Soa multi-national, if it cannot sell in Britain, France or Germany, it is not worth selling in Portugal, Greece or Finland? (Dr Reid) Yes. It is horses for courses, but that could well be the case. It could be that a small company would also be interested just in the European market, sees it as a whole, and if it is inhibited in one country markets the innovation in none. A major point is this inhibition, my Lord, that slows innovation. The patent system, as it stands, is open to that effect. Chairman 24. Is it fair to say then in relation to the Community patent, that other things being equal, it is better to have a patent which covers as much territory as possible, but this is heavily dependent upon questions of cost and how you enforce it? (Dr Reid) Yes. Very, very well put, if I may say so, my Lord. Lord Wigoder 25. May I follow this up. A Community patent would run throughout the Community, would it, whether you wanted it to or not? (Dr Reid) Correct. There have been, my Lord, suggestions of a Community patent with holes in it, but the Commission is not pushing that. 26. It would cost the same, whatever degree of cover you wanted? (Dr Reid) Correct. Lord Goodhart 27. The suggestion in these papers is that if you did not want a Community patent, you would still be able to go for a European patent and choose which countries you wanted from the bundles? (Dr Reid) Correct, and still also go for the national route. 28. A Community patent would not exclude a European patent? It would live alongside it? (Dr Reid) Yes. Chairman 29. Now, there is a particular Community patent which so far has not got off the ground and that is the Luxembourg Convention 1975, as amended in 1989. Can you tell us, first of all, why it has not got off the ground. What is wrong with it as it stands? (Dr Reid) Iam not sure that I could rehearse all the complexities, but Denmark and Ireland had constitutional problems. The main point was that most industrial bodies, as normal with heavy large industry representation, because large industry sends people to such meetings—but also with representation from small or medium size business—said that it was an unworkable system. This was on two main grounds: