February 2011
On Tuesday 15th February 2011, the European Parliament voted, with a large majority, to push through legislation to both reduce the translation requirements of the existing European patent system; and to reach agreement on a ‘Community Patent’, having the same legal effect in all member states.
A European Patent when granted offers protection in all designated member states and necessarily includes an English, German and French version of the granted claims. In order for the European patent to take legal effect in each member state, a translation of the patent text into the applicable official language is often required. As such, obtaining pan-European patent protection requires the potentially costly preparation of numerous translations.
In 2008, we welcomed the London Agreement, which reduced the need to prepare translations in some of the major member states. More states have since joined. Nevertheless, many member states still require a translation of at least the claims of the European patent. Forresters has an established network of translators to obtain a discount on preparing any translations still required.
Ever since the introduction of the European patent system over 30 years ago, there have been calls to agree on a universal language, or languages, in order that a European patent can automatically take effect in all member states without any further translations being required.
Separately, whilst the central examination and grant of a European patent is based on the European Patent Convention (EPC), the extent of legal protection offered by a European patent in an individual member state is ultimately determined on the basis of the prevailing patent law of that member state. Consequently, the interpretations by member states of the same patent may diverge from one another – and sometimes even from the EPC. There have thus also been calls to establish a patent system offering unilateral legal protection in all member states, overseen by a central European patent court.
Unanimous agreement on both the translation requirements and a unilateral patent system has never been reached and, given the strong objections from some member states, some believe never will be.
In a change of tack, the European Parliament has now voted to utilise a clause in the Lisbon Treaty to attempt to force through legislation on the basis of only a majority agreement. Spain and Italy have vehemently refused to adopt the legislation, but will still have the option to do so at a later date.
The proposal must still be adopted formally by the relevant Council of the European Parliament, who will meet on 9–10 March 2011. If accepted (as seems likely), detailed legislative proposals on both issues must then be submitted for further discussion and subjected to final approval by the European Parliament. We wait with interest to see if agreement can yet be reached when the full details of the proposal are formulated, or whether the holy grail of European patent protection will again elude us.
We will of course be keeping a close eye on developments. In the meantime, should you require any further information, please contact your usual Forresters attorney.