Brussels, 11 Feb 2003
10 February 2003
Subject: Community patent - Common political approach
The Presidency herewith submits a proposal for a common political approach regarding the main principles and features of the Community Patent for consideration by the Council. It contains suggestions for the key elements of the jurisdictional system for the Community Patent, the language regime, costs, the role of national patent offices and the distribution of fees.
The proposal takes into account elements from previous discussions and seeks to find a balanced solution, it being understood that nothing is finally agreed, until there is agreement on the package as a whole.
2. LANGUAGES AND COSTS
2.1 The language regime must meet the objectives of affordability, cost- efficiency, legal certainty and non-discrimination.
2.2 The language regime for the Community Patent will, up to grant, be the same as the one provided for in the European Patent Convention. This means that the applicant has to present a complete application document in one of the three official languages of the EPO as well as, at the time of grant of the patent, a translation of the claims into the two other EPO languages. However, where the applicant files the application in a non-EPO language and provides a translation into one of the EPO languages, the cost of that translation will be borne by the system ("mutualisation of costs").
2.3 For reasons of legal certainty - in particular in connection with actions or claims for damages - non-discrimination and dissemination of patented technology, the applicant must, at the time of grant of the patent, file a translation of all claims into all official Community languages except if a Member State renounces the translation into its official language. The translations will be filed with the EPO and the costs borne by the applicant, who decides on the number and the length of claims to be included in the patent application, thereby having an influence on the cost of translations.
2.4 The renewal fee for a Community Patent must not exceed the level of the corresponding renewal fees for an average European Patent and will be progressive throughout the life of the Community Patent. The level of procedural fees for processing an application for a Community Patent will be the same regardless of where the application is filed and where the novelty search is carried out (EPO or national patent office). The level of fees will be related to costs for handling the Community Patent and must not lead to any indirect subsidy of national patent offices.
2.5 The Commission is invited to carry out a study into the possibility of further savings in costs, for example in respect of services rendered by patent agents.
3. ROLE OF NATIONAL PATENT OFFICES (NPO)
3.1 The European Patent Office (EPO) will play a central role in the administration of Community Patents and will alone be responsible for examination of applications and the grant of Community Patents.
3.2 All national patent offices will have an important role to play, as set out in the Common approach of 31 May 2001, inter alia advising potential applicants for Community Patents, receiving applications and forwarding them to the EPO, dissemination of patent information and advising SMEs.
3.3 Applications for Community Patents can be filed with the National Patent Office of a Member State in its working language(s). Applicants will remain free to present their patent applications directly to the EPO. They may also request that their applications be fully processed by the EPO.
3.4 On behalf of the EPO and at the request of the applicant, National Patent Offices of Member State having an official language other than the three official languages of the EPO may carry out any task up to and including novelty searches in their respective language(s).
3.5 National Patent Offices of Member States having as their official language one of the three EPO-languages, which have experience of cooperation with the EPO and which need to maintain a critical mass may, if they so wish, carry out search work on behalf of the EPO.
3.6 The relationship between NPOs carrying out tasks referred to in paragraphs 4 and 5 above and the EPO will be based on partnership agreements, containing inter alia common criteria for quality assurance. Partnership agreements will be subject to independent periodic review.
3.7 The Community Patent system will include a safeguard clause according to which the Council, acting on a proposal from the Commission, can agree to extend the involvement of any NPOs in search activities to meet any severe problems of capacity in delivering Community Patents. Such arrangements must not lead to any reduction of quality of the Community Patent.