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04 March 2008, 15:12

Brussels makes a new stab at a Community patent

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The Slovenian presidency of the EU Council wants to stimulate a new debate about a common patent protection system at EU level. It has published a working paper (PDF file) about a future Community patent, which it describes as a "fundamental but still missing element in the system for the legal protection of commercial rights" in the Union. Together with the planned EU Patent Tribunal, it would offer users an "optimal patent system" that could encourage innovation and enhance the competitive strength of the European economy.

Slovenia further describes this Community patent, which the EU Commission has also supported in its announcement of a "strengthening of the patent system", as the "most propitious and best legally secured response" to the challenges of the legal protection of commercial rights. Previously, the European Patent Office (EPA) has granted bundles of national, time-limited monopoly rights only to technical inventions. The Munich authority is not an agency of the EU: its parent body is the European Patent Organization, which extends beyond the Community.

So far, all efforts at setting up a Community patent have broken down at Council level, mainly because of disputes about translations and the associated costs. The Slovenians are highlighting this consideration, together with a proposal on the allocation of anticipated income from rights renewal fees, in the hope of achieving a consensus.

The paper says that, in the interests of small and medium enterprises (SMEs), a Community patent should not be too costly but, at the same time, easy access to patent information has to be kept open by means of translations. The Council leadership therefore considers that two solutions make sense: first, a flexible Community patent, each applicant itself specifying the number of translations to be made, with claims being made in the relevant linguistic areas. The second option provides for a central, low cost, mostly automated, EU translation service. The Council presidency considers machine translation feasible, since preliminary work for such a system has already been done for the technical terms dealt with by the EPA. Additional human translators would be required during a transitional period.

The Council presidency recommends that, as with existing batch patents, 50 per cent of income from renewal fees should go to the EPA to cover its costs. The EPA would also be responsible for awarding Community patents. The other 50 per cent would be distributed among the national patent offices of the EU Member States. Allocation would be based on a mix of various economic criteria, such as popualation size and the level of patenting activity in a given EU country. In this way it is hoped that EU Member States that are not yet among Europe's elite patenters will also gain. A premium could moreover benefit countries that insist on fewer translations of patent claims.

The document does not discuss the criticism by activists that a Community patent would codify within the EU the EPA's awarding practice, which includes extensive protection of property rights to computer-implemented inventions. The sceptics view is that efforts at harmonization are opening up a back door for the entry of software patents. (Stefan Krempl)


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