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.

    96/144 page 64
    I April 1998] [Continued 7. In order to protect an invention throughout the Community at present, a separate patent has to be obtained in each member state, either by making individual applications to national patent offices or by obtaining a single European patent, designating each state separately, from the European Patent Office (an organisation established by treaty which is not an EC institution) in Munich. At the moment a European patent in effect is a bundle of individual national patents but under a Community patent system an applicant would be able to choose that a European patent should have autonomous, Community-wide effect. A Community patent system would also establish Community-wide litigation procedures. Thus, with such an unitary patent system: — the management of the granted patent rights would be facilitated since there would be no national phase. This would also have the effect of reducing costs, for example, associated with the use of professional representatives; — the need to bring infringement actions in each member state would be avoided since the plaintiff could bring all the actions before the courts of the member state in which the defendant is domiciled; and — the creation of a central court competent to hand down decisions on the interpretation and validity of Community patents would offer greater legal certainty. 8. In its first question the Commission asks if industry would be attracted towards the Community patent system if it came into force or does the existing system of the European patent and national patents meet its needs? In this connection the Green Paper also poses the fundamental question whether the Community patent system should be introduced by way of a regulation under Article 235 of the EC Treaty rather than by way of the Community Patent Convention. The Green paper cites certainty about the date of entry into force and ease of extending the system to Austria, Finland, Sweden and future members of the European Union as advantages for using a regulation rather than continuing with the present Convention. 9. The Green paper identified two aspects of the Community patent system, as devised in 1989 Agreement, which might be seen as detracting from its usefulness. The first is the cost of translations of patent specifications into the languages of all member states. It is estimated that on average the cost of translations would be in the region of £8,400 for each specification. The second aspect concerns the judicial arrangements for bringing a counterclaim for revocation before a national court in which an infringement action has been started. The Commission reports that some potential users of the Community patent system take the view that there is too great a risk of a patent covering a territory as vast and economically important as the Community being revoked in all member states by a judgment handed down by a single national court. The Green Paper asks if these are indeed weaknesses of the Community patent in its present form and if there are any further disadvantages. Translations of Community patents 10. The Green Paper asks for views on various solutions that have been proposed over the years. These proposals involve: — limiting the translation requirement to the claims of the patent specification while allowing member states to declare that the owner of a patent could not avail himself in that state of the rights conferred by the patent unless it is published in full in an official language of that state; — requiring a translation of the full specification with the consequence that failure to file this translation would mean that the patent would not take effect in the member state concerned; — a package solution offering translations of an enhanced abstract of the specification at the time or thereabouts of publication of the application, translation of the claims only when the patent is granted and translation of the full specification before the patentee can enforce his rights in the patent; — establishing a system of translation on demand; — requiring the translation of an abbreviated specification containing a summary description which provides the information essential to the understanding of the invention and to the interpretation of the claims; or — doing away with the requirement for translations altogether or requiring translation of the claims only. Judicial arrangements for the Community patent 11. The Green Paper seeks views on an arrangement whereby actions for revocation of Community patents could fall within the exclusive jurisdiction of the European Patent Office. Appeal would be to the Court of First Instance of the European Communities and finally on points of law only to the Court of Justice of the European Communities. Thus, contrary to the provisions of the existing Convention, national courts would not have jurisdiction for counterclaims for revocation for Community patents.
    digitised image 1
    digitised image 2
    digitised image 3