Transatlantic patent reform

30 June 2011

Major decisions on patent system reform have very recently been taken on both sides of the Atlantic. Last week, the US House of Representatives passed a bill envisaging a move from a first-to-invent to a first-inventor-to-file system which would be the most significant change in US patent law since 1952. Indeed, this reform would bring the US patent system more into line with those in place in Europe and the rest of the world. The bill now has to be reconciled with one already passed by the Senate, but many observers say this is unlikely to present a great problem.

Europe, meanwhile, has long been engaged in a process of reform, aimed at creating a single patent valid throughout the EU, while lowering costs and simplifying the administrative procedure for users. It has failed to reach an agreement on this for decades, and the various guises of the envisaged scheme known first as the Community Patent, then as the EU Patent, before finally becoming the Unitary Patent are testimony to the difficulties involved. As things stand, this unitary patent protection would have effect in 25 of the EU member states.

It is important for Europe to show that, like the US, it too is capable of reform. Promisingly, the EU Competitiveness Council took an important decision last Monday, with the 25 interested member states endorsing two draft regulations on unitary patent protection and the applicable language regime. What happens now is largely up to the European Parliament, which is expected to take its decision by the end of the year.

The crucial stage for these two patent reforms is likely to be reached in the second half of 2011, although the European project also depends on finding a solution for the patent litigation system. All things considered, however, I must say I am quite confident that they will be implemented as I believe they are dictated by global economic imperatives. For its part, the Office is already preparing itself to ensure that it will be able deliver the additional services needed by the 25 participating EU member states when the time comes.

Benoît Battistelli

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