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 Borrie Contd] to those patentees who had a requirement across Europe, then it would end up as, if you like, a very sectoral type of patent system, which we think would be wrong. We think that it should be seen as an opportunity to go via a different route. It should be an attractive, viable alternative for all industries, and on average in the discussions that we have held internally this figure of three times the national seems be the point at which most companies would recognise it as an attractive opportunity. Chairman 123. Just coming now to the Luxembourg convention in order not to go over familiar ground the two main objections which have been put to us both by yourselves in your written submissions to us and by other witnesses are first of all the cost of translations, which we will come to in a moment, and secondly, a court system under which on the basis of the national court which you first get any court throughout the Community could revoke a Community patent with Community wide effect. Those are the two main objections. Are there any others which you have to the original system? (Mr Blakemore) My Lord Chairman, yes, I think that there are at least two more. The Luxembourg convention would not have settled any difference in patent practice in such areas as prior user provisions and compulsory licence procedures, and there was and there is still the danger of a more rigorous exhaustion regime which is something that we feel should be dealt with in any new instrument and certainly was not dealt with in the Luxembourg convention. 124. When you say, a more rigorous exhaustion regime, it was explained to us by witnesses at a previous hearing that at any rate what they had in mind as the problem about exhaustion was that the failure to apply for a patent in a given country might be taken as a consent to your product being made there, with the result that it could then be imported in to the rest of the Community. Is that what you have in mind? (Mr Blakemore) My Lord Chairman, that is what we have in mind, and what we would like to see is an opportunity to write into any new _ instrument specifically a provision which would prevent that happenstance, 125. Iam sorry, I forgot what the other one was— oh, yes, it was about compulsory licensing. What is the problem there? (Mr Blakemore) The provisions are different in different countries and therefore if one is trying to administer or deal with a portfolio of patents throughout the Community one would want to be able to envisage a closer harmonisation in relation to such matters as that. 126. Yes, thank you, and then there was a third point, I think? (Mr Blakemore) We had prior user. 127. Yes, prior user, and what is the problem there? (Mr Blakemore) The problem is that in some countries the circumstances under which a prior user obtains rights under a patent would be different from one country to another. 128. Oh, I see, you mean the provision that in this country if you made secret use of the process before somebody else patents it you can go on doing it in this country but not in any other country? (Mr Blakemore) The terms under which you can do it would be different, my Lord Chairman. I am not saying that you could not do it in other countries, but the terms would be different. 129. You would have to go to their law and find out what it was? (Mr Blakemore) That is right, yes. 130. And you want uniformity on that? (Mr Blakemore) Yes, 1 am _ saying that the Luxembourg convention failed to address these points and we feel that if we were to have a new instrument, then we ought to take the opportunity to deal with them. 131. May I just make the point here that not all members of the Committee are lawyers and the reason why when I spoke about prior user I was talking about prior secret user, which sounds rather strange, was because if it had not been secret user it would have invalidated the patent because it would have made something that was already publicly known. Mr Sheard (Mr Sheard) My Lord Chairman, I wonder whether I may just interject at that point. I think it would be very desirable also just to stress the point that any right of secret prior user should have Community wide effect rather than be judged on a country by country basis. 132. Yes, and there has been a suggestion to us that if that were not the case it might be regarded as an infringement of Article 30. (Mr Sheard) | see, yes. (Mr Nott) My Lord Chairman, on the question of compulsory licences at the moment compulsory licenses are granted on a national basis and are frequently limited, certainly in this country, to the particular nation. If compulsory licences were to be granted on a Community basis under a Community patent, that could effectively destroy the benefit of the patent to a small manufacturer in a single country because a major competitor in another country who had got a compulsory licence would then be able to sell his goods throughout the Community. It is equivalent to the exhaustion point which was raised earlier. 133. Thank you. Now, having dealt with those additional points, may we come back to the main ones and may I ask, what is your favoured solution to the translation problem? Of course, you will all say “English”. (Mr Blakemore) My Lord Chairman, with respect, I know that one may smile at what quite obviously is a very attractive and convenient arrangement for us to specify English only. We envisage a_ procedure
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