Quick Navigation:Home Page [Alt] + 0 | Content [Alt] + 1 | Sitemap [Alt] + 8 | Help [Alt] + 9

Promotion

URL: Location: Home→Brevets→Lois→Initiatives législatives →Brevet de l'UE

EU patent

EU Council agrees on next steps regarding the Community patent (EU patent)

Désolé. Actuellement, cette page n'existe pas en français.

At the last Competitiveness Council on 4 December 2009, Ministers reached agreement on a number of key elements constituting the future EU patent system.

Ministers agreed on:

  • a draft Regulation on the EU patent - General approach ;
  • a set of conclusions on
    • the features of the envisaged unified patent litigation system
    • the arrangements related to the renewal fees and their distribution for the EU patent
    • a system of Enhanced Partnership between the EPO and central industrial property offices.

The substance of the agreed package as set out above comprises neither the translation arrangements for the EU patent nor the details of the EPC revision necessary to accommodate the EU patent.

With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the "EU patent" and the "European and Community Patent's Court (ECPC)" has been renamed the "European and European Union Patent's Court (EEUPC)".

The European Patent Office supports the creation of an EU patent and the establishment of a European and EU Patents Court (EEUPC), and sees the decisions taken at the recent Competitiveness Council as a promising step forward, although it remains difficult to assess when this will translate into an operational system.

  1. Draft Regulation on the EU patent - General approach

    The draft Regulation on the EU patent mainly deals with post grant issues, eg. the effects of the EU patent, compulsory licences, or the lapse and invalidity of the EU patent. The translation arrangements are no longer part of it. As a next step, the European Parliament will now have the opportunity to debate the EU Patent Regulation via the co-decision procedure (now referred to as "ordinary legislative procedure" under the Lisbon Treaty).

    The basic concept underlying the future EU patent system is that the EU accedes to the European Patent Convention (EPC) and that the EPO grants EU patents. Such patents will be European patents having unitary effect in the territory of the European Union.

    Revision of the EPC

    On the basis of this concept, a revision of the EPC is necessary to put up the EU patent and to allow the EU to accede to the EPC. Issues such as the voting rights of the EU, the establishment of a Select Committee of the Administrative Council or the parallel designation of both the EU and its Member States in a European patent application will also have to be regulated in the EPC. The outcome of a EU patent related revision conference (Revision Act) will then have to be ratified by all EPC Contracting States (36 at present). It may be recalled that the EPC 2000, which was revised in November 2000 at a Diplomatic Conference comprising only a fraction of the present EPC Contracting States, only entered into force on 13 December 2007, which gives an idea of the time-frame for the realisation of the present endeavour should it finally come to pass. 

  2. Translation arrangements

    The Lisbon Treaty (Article 118 TFEU) has provided a new, specific legal basis for the creation of unitary intellectual property titles within the European Union. While, according to this new legal basis, unanimity is still required for deciding on the language arrangements of such titles (and consultation of the European Parliament), all the other aspects thereof shall now be decided upon by qualified majority under the ordinary legislative procedure (co-decision procedure).

    Taking into account 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. This obviously aims at focussing the future discussions on the language regime. As a next step, the European Commission will have to elaborate a proposal for a Regulation on the translation arrangements. It is unclear whether under Spanish EU Presidency a proposal will be presented. The future translation arrangements would have to be adopted by the Council acting unanimously.

    According to the EU Council conclusions, it is foreseen that that the EU Patent Regulation comes into force together with the separate regulation on the translation arrangements for the EU. 

  3.  The Council Conclusions in detail 

    Renewal fees

    Concerning the renewal fees and their distribution 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. It is foreseen that the EPO retains 50% of the renewal fee income.

    Enhanced Partnership

    As regards the Enhanced Partnership it is suggested in the Conclusions that it should enable the Office to make regular use, where appropriate, of the result of any patent search carried out by a central industrial property office of the EPC contracting states on a national patent application, the priority of which is claimed in a subsequent filing of a European patent application. Such utilisation should be carried out in accordance with the already established utilisation scheme of the European Patent Network (EPN) among the EPC states. The Enhanced Partnership should 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 should include standards on inter alia training, tools, feedback and assessment.

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

    The EEUPC would be established by a "mixed agreement"" (i.e. the competence to negotiate and conclude the envisaged agreement would be shared by the EU and its Member States) between, on the one side, the EU and its Member States and, on the other side, non-Member States which are Contracting States of the EPC.

    The envisaged international treaty would establish a patent court system which has exclusive jurisdiction in respect of infringement and validity issues concerning European and EU patents. The EEUPC would comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance would comprise a central division, as well as local and regional divisions in the contracting states to the agreement.

    There are many outstanding issues regarding the unified patent litigation system which remain in dispute, such as the composition of the panels, the competence of the divisions of the Court of First Instance, the notion of technical judges, or the language arrangements.

    In June 2009, the Council submitted a Request to the European Court of Justice (ECJ) on the compatibility of the draft Agreement with the EU Treaties. The judicial review of the ECJ takes place before the conclusion of the agreement and is given in the form of an opinion. The opinion is expected at the earliest by summer 2010.

Further information:

 

 

 

 

 

 

 

 

 

 

 

 

© European Patent Office.Adresse bibliographique.Conditions d’utilisation..Dernière mise à jour: 18.12.2009