Intellectual Property Rights - Community Patent (Extract from Background for the Competitiveness Council of 22 Sep)

September 19, 2003

Brussels, 18 Sep 2003

The Council will take note of a progress report on the proposal for a Regulation creating a Community patent. Following the common political approach reached by the Council at its meeting of 3 March 2003, many questions have been settled both at the Working Group and at the Committee of Permanent Representatives (Coreper).

The aim of the proposal for a Council Regulation on the Community Patent is to provide for the creation of a single industrial property right for the whole Community, to be granted by the European Patent Office (EPO) in Munich. It aims at eliminating the distortions of competition created by the territorial nature of national protection rights and ensuring the free movement of goods protected by patents.

Alongside this draft Regulation, amendments will have to be made to the European Patent Convention to enable the European Patent Office to play its part in the Community patent system. There is also the need to introduce jurisdictional arrangements in the draft Regulation and to create through the future Commission proposals a judicial panel to decide in first instance on some actions in respect of Community patents. Member States have repeteadly emphasied in that case that nothing can be finally agreed until there is an agreement on the package as a whole.

A number of questions of a more political nature need still to be discussed Coreper, in particular:

  • The maximum time limit for filing translations of the claims into all official Community languages,
  • The solution for conflicts where the protection offered by the authentic version of a Community patent is narrower than the translation in the official language of the Member State where the conflict has arisen,
  • Government use of the Community Patent, and
  • The body responsible for granting compulsory licences and applicable conditions.

The European Council has emphasised on several occasions that the Community patent must be an efficient and flexible instrument ­ obtainable by businesses at an affordable cost ­ which complies with the principles of legal certainty and non-discrimination between the Member States.

Agreement on March 2003 on a common general approach on the proposal was made possible by acceptance by one delegation which has previously resisted the common centralised jurisdictional system, as initially proposed by the Commission. During a transitional period however, the system should fall back on national expertise.

In the EU, patent protection for innovation is currently provided by two systems ­ national patent systems and the European patent system ­ of which neither is based on a Community legal instrument. The 1973 Munich Convention established a European Patent Organisation, laying down a single procedure for the granting of patents, which once granted become national patents subject to the national rules of contracting states. All of the EU's Member States are members of the Convention, which is governed by international law.

The proposal to create a Community patent system stems from the Commission's 1996 action plan for innovation and subsequent Green Paper on patents. The objective is to enable companies to transform their technological and scientific know­how into industrial and commercial success, thus stimulating private sector investment in research and development. Such investment is currently at a very low level as compared with the United States and Japan.

Companies would remain free to choose the type of protection best suited to their needs. Given that the EPO would be responsible for examining patent applications and granting Community patents, the new system would require the Community's accession to the Munich Convention as well as a revision of that Convention.

The proposal is based on article 308 (requiring unanimity in the Council and consultation of the European Parliament).

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