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The EU patent

Council agrees on next steps

At a meeting of the European Union's Competitiveness Council on 4 December 2009, Ministers reached agreement on a number of key elements of the future EU patent system, including:

The agreed package does not include either the translation arrangements for the EU patent or the details of the EPC revision that would be necessary to accommodate the EU patent.

Formerly known as the Community patent, the EU patent took its new name with the entry into force of the Lisbon Treaty, under which the European Union replaced and succeeded the European Community. The European and Community Patent Court (ECPC) has been renamed the European and European Union Patents Court (EEUPC) for the same reason.

The EPO supports the creation of an EU patent and the establishment of a European and EU Patents Court and welcomes the decisions taken by the Competitiveness Council,  although it appreciates that it may be some time before plans can actually be implemented.

  1. Draft Regulation on the EU patent (General approach)
    The draft regulation relates mainly to post-grant issues, including the effects of the EU patent, compulsory licences and lapse/invalidity of the patent, but excluding translation arrangements. As a next step, the European Parliament will have the opportunity to debate the regulation via the co-decision procedure (now known under the Lisbon Treaty as the "ordinary legislative procedure").

    The basic concept underlying the system is for the EU to accede to the European Patent Convention (EPC) and for the EPO to grant EU patents. Such patents would be European patents having unitary effect in the territory of the European Union.

    Revision of the EPC
    In order to implement this system, it will be necessary to revise the EPC to allow the EU to accede to it and to regulate such issues as the voting rights of the EU, the establishment of a select committee of the Administrative Council and the parallel designation of both the EU and its member states in a European patent application. A revision conference will have to be held, leading to a Revision Act which will have to be ratified by all the EPC contracting states (37 at present). To give an idea of the time-scale involved, the EPC 2000, which was revised in November 2000 at a Diplomatic Conference comprising only a fraction of the present number of EPC contracting states, did not enter into force until 13 December 2007. 
  2. Translation arrangements

    The Lisbon Treaty (Article 118 TFEU) has provided a new and specific legal basis for the creation of unitary intellectual property titles within the European Union. While unanimity is still required for any decision on the language regime (plus consultation of the European Parliament), all the other aspects can be decided upon by a qualified majority under the ordinary co-decision procedure. In view of this legal change, the EU Council conclusions now propose that the translation arrangements for the future EU patent be dealt with in a separate regulation. The aim of this is obviously to focus future discussions on the language regime. As a next step, the European Commission will have to draw up a proposal for such a regulation.

    According to the EU Council conclusions, the EU Patent Regulation would come into force together with the separate regulation on the translation arrangements for the EU. 
  3. The Council conclusions in detail  Renewal fees

    The EU Council agreed that the select committee of the Administrative Council should, once the Regulation on the EU patent enters into force, fix both the exact level of the renewal fees and the distribution key for their allocation. The EPO would retain 50% of renewal fee income.

    Enhanced partnership

    Here the conclusions suggest that a concept of enhanced partnership should enable the Office to make regular use, where appropriate, of the results of patent searches carried out by the central industrial property offices of the EPC contracting states on national patent applications whose priority is claimed in a subsequent filing of a European patent application, in accordance with the established utilisation scheme of the European Patent Network (EPN). It would be based on a European Standard for Searches (ESS), containing criteria for ensuring quality which are based on the agreed quality systems of the EPN. In addition to searches, the ESS would include standards on training, tools, feedback and assessment among others.

    Main     features of the European and EU Patents Court system (EEUPC)

    The EEUPC would be established by a "mixed agreement". In other words, the competence to negotiate and conclude the agreement would be shared by the EU and its member states on the one hand, and any non-member states which are contracting states to the EPC on the other.

    This agreement, which is in fact an international treaty, would establish a patent court system with exclusive jurisdiction in respect of infringement and validity issues relating to European and EU patents, comprising a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance would have a central division as well as local and regional divisions in the contracting states to the agreement.

    A number of issues - including the composition of the panels, the competence of the divisions of the Court of First Instance, the notion of technical judges and the language regime - still have to be resolved. In June 2009, the Council submitted a request to the European Court of Justice on the compatibility of the draft agreement (PDF, 340 KB) with the EU treaties. The judicial review, which will be given in the form of an opinion, is not expected before summer 2010 at the earliest.

Background information

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