Careful steps toward an EU patent

The EU and, before that, the European Community, have been talking since the 1960s about the possibility of a single patent that covers its whole territory. As it stands now, only one aspect of getting a patent here is centralised: You can go to the European Patent Office and have your application examined one time rather than in multiple countries.

But once you pass that hurdle, you still need to go to every single European country and get that patent ‘validated’ if you want it to go into effect there, and you sometimes even need to translate the patent into the local language to do so. So ‘European patents’ today are really national patents. These are subject to national court determinations in every European country, and can be interpreted, found valid or invalid, and found infringed or not infringed, in different ways in different countries.

The European governments are working fast to change this. In December 2012, 25 of the EU national governments agreed on regulations that would create a unitary patent that – once examined and approved – would go into effect in all of these countries. They are also streamlining translation requirements. In future, you will be able to apply for an EU Patent in either the English, French or German language. For a transitional period only, if you apply in French or German, you only need to provide one additional translation—in English. No other translations will be needed.

In February this year, 25 countries also agreed to set up a Unitary Patent Court (UPC) across the EU territory. And this week, the participating countries set up their preparatory committee to start the process of actually creating this new court, setting its rules, and getting ready to go. Thirteen countries must formally ratify the UPC Agreement in order to get started, but it seems that more than this number have committed to do so in the next year or so.

At the highest level, there could be some great benefits from such a system. The promised lower costs, improved access, and greater predictability and consistency should help small companies, perhaps even more than large companies. Of course, it’s important that these benefits are actually delivered as promised as the details are finalised over the next few months, and that the goal of a high-quality administrative and judicial system for EU patents is actually achieved.

There are some problem areas that still need to be fixed, in order to ensure that these benefits are in fact delivered. One place where improvements are needed is in the detailed rules and procedures of the UPC, where there are particular questions about court injunctions. Judges need to take into account all relevant factors in deciding whether to issue injunctions. These shouldn’t simply be automatic – that would only promote overreaching by ‘patent trolls’ and unreasonable royalties for standards-related patents.

Another similar issue being addressed is so-called ‘bifurcation’. It would be sensible as a regular practice for the question of patent validity to be heard by the same court that decides whether that patent is infringed – and for validity to be heard before infringement issues. Again, this is important to discourage abusive litigation tactics and to avoid wasting time and money.

There is a lot of work still to be done. But with some hard work and sensible improvements like these, we may see history in the making over the next few months, as the 50-year dream of our European predecessors for a single Community/EU patent system may well become a reality.

Mark Lange
Director EU Institutional Relations, Microsoft

Mark Lange is Director of EU Institutional Relations. He joined Microsoft in 1998 and currently works on policy issues relating to cloud computing, privacy, security and data governance in the European Union, as well as interoperability and intellectual property across Europe, Middle East and Africa. He previously worked for law firm Covington & Burling in Washington, D.C. and Brussels, from 1989 to 1998. His practice included general litigation, international trade, and intellectual property. Mark Lange graduated from the University of Virginia in 1981 and from Northwestern University Law School in 1989.