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.

    47/144 (page 15)
    18 February 1998] [Continued choice of obtaining national patents (either by separate national applications or as a European patent obtained under the EPC) remains if a unitary patent system is introduced. Q3. What would be the main advantages and disadvantages of patent protection covering the whole Community? 3.1 The Chartered Institute believes that a unitary patent would be advantageous to particular parts of industry if it could be obtained and renewed at a much cheaper cost than the cost of obtaining, validating and maintaining a European patent covering all Member States. This is particulary important for patentees for whom in the normal way full geographic patent coverage of the entire Community would often not be desired because it is commercially unnecessary. However we believe that it is essential that if a unitary patent were to be introduced it would be as an alternative to national patents obtained via national applications or by the European route. 3.2 A potential disadvantage of a Community patent would be that an inexperienced national court might be able to declare the patent invalid across the EU. Therefore a central court for adjudication of issues of patent infringement and validity for the whole Community, prima facie, would be an attractive idea. Such a court would have to command respect, both in terms of the quality and speed of its decisions. There is at present no formal harmonisation among the patent laws of Member States of the provisions for the law of patent infringement; such harmonisation would be necessary. Q4. 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)? 4.1 No. We think that it is likely that, if the Luxembourg Convention came into effect in its present (1989) form, the Community patent system would be little used. The legal provisions are unsatisfactory and no advantage in cost is readily apparent. Q5. 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)? 5.1 The high cost of obtaining patent protection throughout the EU is certainly a disadvantage and a signficant contributor is the cost of translation of the patent at grant. 5.2. There is also no doubt that judicial uncertainty is a signficant weakness in the present form of the Luxembourg Convention. Each Member State has a different history and judicial system where validity, enforcement, formality/procedure, timescales, costs and remedies for patent infringement are handled differently. There is therefore a wide range of effectiveness of patents throughout the EU from strong enforcement in some Member States to being effectively non-existent in others. To run the risk of a patent for the whole of the EU being subject to a low quality court decision would be wholly unacceptable to a patentee. The problem would become worse as more countries join the EU. Speed is also a consideration but, bearing in mind that some patent infringement disputes may involve very signficant commercial issues affecting investment and employment, it is more important to reach the right decision after proper consideration, than to reach the wrong decision by rushed justice. Adequate appeal procedures must also be provided to cope with judicial error. 5.3 The Chartered Institute believes that the problems associated with prior use rights, which are set out in 8.3, and potentially high renewal fees might also be defects. Q6. Is there a case for further action at community level? 6.1 The Chartered Institute believes that further harmonisation referred to elsewhere in this submission is desirable. However we would urge caution in the direction and pace of such harmonisation. We believe that very high quality work is done by the British Patent Office and Courts and would welcome harmonisation towards our practices rather than against them. In particular, we believe that the requirements for discovery and cross examination of witnesses under the common law are important aspects of a proper trial procedure and should be present (albeit in a controlled environment) in any harmonised system of trial procedure. Continental legal systems presently make little or no use of these and may even deny evidence from experts if they have been paid by one of the parties. Q7. Should the Luxembourg convention be turned into a legal instrument covered by the EC Treaty (i.e., a regulation made under Article 235)? 7.1. The Chartered Institute sees merit in aiming for a new international convention which would not only formally harmonise the substantive law of patent infringement within the Member States of the EU, but also institute some form of supra-national patent court for the adjudication of patent infringement and validity disputes, as well as making some modifications in the EPC. A new convention would allow Switzerland and the increasing number of States which base their patent system on a registration of European patents to be included. Harmonisation could also then be an essential requirement for candidate countries for EU membership in advance of them becoming EU members. We feel that a much greater degree of harmonisation would occur by a new convention than by a Regulation which could not go beyond the current ambit of the EU.