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.

    63/144 page 31
    4 March 1998] [Continued Translations 5.1 The cost of translations is probably the greatest disadvantage to the Luxembourg Convention. At present an application for a patent in each of the countries covered by the EPC must currently be translated into ten different languages. As additional countries join the Community, each will introduce a further language. If all current interested applicants ultimately join, there would be 25 Member States of the Community necessitating therefore potentially up to 24 translations. Even now industry, with perhaps the sole exception of the pharmaceutical industry, does not apply for patents in all countries covered by the EPC. It selects those countries where it believes the costs of obtaining patents are justified. As the Community expands, and the costs of translation become ever greater, the number of countries in which patents are not obtained will increase. 5.2 Accordingly, if an applicant for a Community patent is to be obliged to translate his patent into all the languages of the Community the system will be of very limited interest and is likely to fail. The only way for a Community patent to succeed will be if the specification needs only to be translated into a small number of languages. European industry has indicated strongly that it wishes to see the Community patent operate in English only with no translation of the specification. They take that position on the grounds that English is spoken by all industry in Europe; that it is the language of technology; that the majority of any prior art which would be relied on to attack a patent will be in English; and that it is the language in which most, probably all, international companies conduct their activities. 5.3. The CBI would, of course, have no objection to this proposal. 5.4 Two possible additional languages are German and French, the other two working languages of the EPO. However, if German and French are to be used as language for the patent specification there is no doubt that other countries will consider that they, too, must also have specifications translated into their own language. Accordingly the only sensible way forward is for a single language and, for the reasons above, English is the logical choice. Judicial Arrangements 5.5 The complicated judicial arrangements of the Luxembourg Convention are unacceptable to industry. Industry would wish to see proceedings brought before an experienced patent judge in the appropriate court of first instance. They would prefer that court to be a Community court. They would wish any appeal to go directly to the European Court of First Instance with appeal to the European Court of Justice on points of law. We believe that the Commission should discuss the details of Community patent infringement proceedings with the experienced national patent judges. They have said that they would be keen to help. Exhaustion of Rights 5.6 A further concern to industry is the rules on exhaustion of rights; and whether the advent of a Community patent would have any effect on the existing rules of exhaustion of rights under national systems and the EPC. We would wish any legislation to make it clear that the existing rules of exhaustion under the EPC were not to be widened in favour of an infringer following the advent of a Community patent. Other Weaknesses 5.7 Other weaknesses of the existing Luxembourg Convention are the expected high cost of renewal fees; and problems surrounding rights of prior use and compulsory licensing which vary from state to state. We believe that these last two should be harmonised. As to rights of prior use, we believe that a prior user should be entitled to develop the prior use right which he has obtained within the full scope of the relevant patent and to transfer that right of prior use to any third parties. Any narrower right stultifies the prior use right. A prior user would be unable to take advantage of obvious developments in the technology he has devised and an individual or a small company would not be able to transfer the right to a larger entity which could take the benefit of economies of scale. Each of these might enable a patentee to squeeze the prior user out of the market. Q6. Is there a case for further action at Community level? 6.1 We support a Community-wide patent system, as envisaged by the Luxembourg Convention, operating throughout all (and not some only) states in the Community, including new Member States, as and when they join. However, the existing national and European patent systems should continue, thus providing choice for users. 6.2 Whilst the Luxembourg Convention can be used as a starting point for developing a Community-wide patent system, the Convention itself should not be pursued further, since some of its provisions require significant modification to make a Community patent system a viable proposition.
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