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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    [Lord Wedderburn of Charlton Contd] American-based multinationals who purport to use English? (Professor Adams) And Japanese. (Dr Reid) We are not talking about ourselves. We are talking about the international community, our United States friends and others. Lord Wedderburn of Charlton] It shows the strength of English in the global economy. Lord Goodhart 42. It was said you could use any of the Community languages but there was no translation until the stage of litigation. Would there be a risk of people putting their applications in, let us say, Finnish, in order to make it more difficult for people to find out what the patent actually said? (Dr Reid) Yes. As your Lordships have probably worked out, there are many, many options being put forward, but when we have Estonia and Latvia in, on the one hand it is very unreasonable to expect a small company in one of those countries to have to file its application in English. So one of the compromises is that the initial application can be in any one of the Community languages, but then it is translated into one version: the English, French, or German. On the other hand, it could be in English only. One other point I should bring out to your Lordships is the strength of the argument that one of the reasons or justifications for a patent system is communicating developments. The patentee has to disclose his invention before the state gives an exclusive right. Is it a proper disclosure in that system for it to be in a language (e.g. English) that is foreign to a high proportion—the majority of the population in the European Union? That would be true of any one language, of course. This is an argument which has been brought forward very strongly by proponents who say that we do have to have a system which translates into all languages. There are many replies. Two points are worth your Lordships’ attention. One is that in the present system in the European Patent Convention there is, as Professor Adams says, just the three languages and 65 per cent in English. Until you get to what in the jargon is called the national phase, after grant by the European Patent Office they transfer then to being national patents, but until that stage there is no full translation. That full translation can be years and years and years after the patent application has been published, in English, French or German. (As my Lord Chairman will know, the procedure in the European Patent Office can take a very long time.) So the wide Community, the general public, potential competitors, all are faced with handling potential patent barriers in just one of these three languages. It does not seem to be a major problem for the Italians, the Spanish etc. People do not shout about it. The other point, which is perhaps merely evidence of what I have just said, is the level of use of the translations at the “national phase”—and it has been recorded in a number of countries—is extremely low. Chairman 43. The Dutch go straight to the English version anyway? (Dr Reid) Yes. But even Spanish private practice that is arguing very vigorously for Spanish as one of the languages, accept that the figures for consultation of the Spanish translation of patents granted through the European route, the EPO again, are very low. I could not name them but they are below 20 per cent. (Professor Adams) I have a figure of 3 per cent. 44. Perhaps we could leave language for the moment and go on to judicial arrangements, which are probably even more difficult. The Luxembourg Convention’s proposal which is, so to speak, that you appoint every national judge in the Community to be a Community judge, for the purposes of deciding infringement and validity, has a certain logic to it; but, as I gather, it is unacceptable because of risks of the quality of judgment. Now, what can we substitute for that and yet have the same logic? (Dr Reid) We could substitute a central court that was peripatetic, staffed—if one could say that of a court—by judges. I am not sure whether judges can be staff. 45. It is acceptable, yes. (Dr Reid) It could be staffed with judges from the national courts. A second alternative is a number of judges selected from a core group, but always having one judge from the country of the infringer. There are subtleties in this. 46. You mean a court deciding at first instance, trying the question of infringement or the validity of the European patent? (Dr Reid) You could have that system, yes. 47. Our system is that you have a single judge and we have enough business here for a couple of judges sitting every day in the patent court. Now, how is a peripatetic international court going to deal with that? (Dr Reid) You may be right, my Lord. Perhaps I think I am wrong to put that forward as the sensible solution at first instance. But it would have to be available at the level of appeal in the first instance. But people do make the proposal that I have just made, that it would be available at first instance. But because the figures for Germany are very, very high—the number of cases of infringement that the German courts hear is very much higher than the ones in England— one would then have to have some system to deal with “small cases”. 48. Is this right? You would still have the Portuguese district judge deciding the question but you would have a right of appeal to a central European patent court? (Dr Reid) Yes. Now there is a system of appeal in the Luxembourg Convention, of course, but most people, so I understand, consider it very complex and it would take many years to get through it. It has to be much simpler. (Professor Adams) The present system has to be seen also in the context of the Brussels Convention on Jurisdiction and Enforcement. It is an entirely separate