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UPDATE: After Decades of Debate, E.U. Leaders Sign Off on Single Patent

10 December 2012 5:55 pm
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BRUSSELS—The European Union is finally poised to get a unified patent system after decades of vain attempts. Today, ministers in charge of competitiveness issues endorsed a legal package to create the unitary patent, which will provide uniform legal protection in 25 European countries. Researchers and companies worldwide will be able to apply for a cheaper, simpler, single patent from 2014 onwards, E.U. leaders claim. But the file has several hoops to jump through before it can be fully rolled out.

At present, the European Patent Office in Munich, Germany, handles bundle patent filings in up to 38 countries through a series of national procedures. In contrast, the new regime will provide a genuine one-stop shop, cutting down on both costs and red tape. According to the European Commission, the price tag for a patent could drop from about €36000 now to about €6400. After a transition period of up to 12 years, during which machine translation technology will be perfected, patenting costs could fall further to under €5000.

These estimated costs remain higher than those of the U.S. patent, which are about €1850 ($2390). But E.U. leaders hope the single patent will be more attractive for inventors than the existing regime, which could help Europe catch up on its global competitors. In 2011, about 224,000 patents were granted in the United States and 172,000 in China, compared with just 62,000 in Europe.

Unitary patent applications would be submitted in English, French, or German. Applicants in another language would need to provide a translation into one of these three working languages, but universities, individuals, small businesses, and nonprofit organizations based in the European Union would get these translation costs refunded. During an initial transition period, applications in English would have to be translated into French or German, and vice versa.

Along with the single patent, E.U. leaders agreed to set up a dedicated Unified Patent Court to handle patent disputes. As part of an elaborate compromise between the union's political heavyweights, the main seat of the court of first instance will be located in Paris, with secondary seats in Londonfor drug patents in particularand in Munich, which will handle mechanical engineering filings.

The final agreement introduced a complex arrangement for the oversight of patent matters by the Court of Justice of the European Union. Instead of being enshrined in the main patent regulation, the court's role will be mentioned indirectly in the Unified Patent Court agreement. Axel Horns, a patent attorney at the KSNH law firm in Munich, says the solution is "awkward." But it satisfies both defenders of the Court of Justice's supreme authority, such as the European Parliament, and those who want to limit its role, including some businesses and the United Kingdom's conservative government. "It's a compromise that leaves the door open. The court's judges can close it or leave it open" if they wish to get involved in patent matters, Horns explains.

Horn says the package contains many other inelegant compromises whose interpretation could be tricky. "It's not first-class law-making," he says. Still, the new system could be a real improvement on the existing, fragmented one; in the decades ahead, it may well emulate the success of the unified E.U. trademark system, whose introduction in the 1990s also led to applications soaring and dropping costs, Horn says. "It depends on the personality of the [future court's] judges," Horn asserts. "If they are reasonable, experienced people, they can make it work and the new system will be much simpler."

Until then, a series of formal steps remains before the plan is put into action. Members of the European Parliament are expected to sign off on the unitary patent package on Tuesday. In addition, governments must sign a separate agreement in February to set up the Unified Patent Court. At least 13 E.U. countries would then have to ratify this deal by November 2013 to launch the single patent the following spring.

Last but not least, Spain and Italy have refused to take part in the unitary patent. They argue that the proposed language regime unfairly favors English, French, and German, and have filed a complaint before the Court of Justice of the European Union, which will issue its opinion on Tuesday as well.

But Michel Barnier, the European Union's internal market commissioner, appears confident that what he terms a "historic" agreement will provide a solid foundation to boost research and innovation. "It took us 30 years to reach this point," Barnier told ministers in Brussels today. "When I took office in 2010, I said I was going to be the last commissioner to work on this file, and I hope this wish will come true."

*Update 12:35 p.m., 11 December:

Today, the unitary patent made two more important steps ahead. A large majority in the European Parliament voted in favor of the package this morning; and Yves Bot, advocate general of the Court of Justice of the European Union today said that pleas against the proposed system by Spain and Italy should be rejected. If the court follows his recommendation, as it usually does, that would derail the countries' attempts to block the plans. Spain and Italy could still decide to join the unitary patent system later.

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