17 December 2011
Will we get a decision this year? On 5 December, the EU Competitiveness Council discussed the unitary patent and European Patent Court package. Although no final decision was taken, well-informed sources say that agreement is not far off. The Polish EU presidency is doing its best to achieve it by the end of the year, but the last few steps can often be the most difficult ones.
The main sticking point, apparently, is the location of the future court’s central division. But that is in itself an indication that the negotiations are nearing their end. So I feel the glass is at least three-quarters’ full, and remain optimistic about the final outcome. If agreement is not reached under the current Polish presidency, it should certainly be accomplished during the next (Danish) one. At this late stage, after so much time and effort has been invested, stakeholders would find it incomprehensible if the project were to fail – especially at a time when Europe is in economic difficulty and European industry needs a more attractive context for protecting innovation and competing on global markets.
The unitary patent will of course have a direct impact on the EPO, and here the final draft fulfils a number of criteria we regard as important. First, it respects our existing general framework, with governance provisions which envisage a special select committee and financial ones which comply with the principle of budget neutrality. The new system will not affect the pre-grant phase, which will be conducted entirely under the EPC. We shall have some new tasks to perform, such as collecting post-grant fees and managing the translation arrangements, but in-house preparations are well in hand to ensure that we will be ready on time.
The European Patent Court proposal, meanwhile, represents a benchmark of best practice in Europe, drawing on both the earlier European Patent Litigation Agreement project and the acquis communautaire. One particular aspect is that technically specialised judges will sit on the new court. Some reservations have been expressed about quality and efficiency, but that is inevitable with such an ambitious new project, especially one affecting legal and jurisdictional frameworks. We heard similar things when the EPO was being set up, but over thirty years on it has become one of Europe’s great success stories.
Then, as now, we did not have the luxury of being able to wait for a perfect system. I think it is high time to move forward.
Categories: International co-operation, Patents
Tags: Benoit Battistelli, European Patent Court, European Patent law agreement, European Patent Office, European patent system, patent court, Polsh Presidency, unitary patent