By Keith Burke, Solicitor, Intellectual Property and Technology Unit
In the Winter 2009 Edition of HOMS News (available here), we reported on the European Commission’s recommendation to the European Council to open negotiations for a “unified patent litigation system” which would facilitate pursuit of cross-border infringement of patents via a single infringement action. In parallel with this development, progress towards the long awaited “Community Patent” or “E.U. Patent” continues.
At present, patents in the European Union do not have an equivalent to the community wide protection offered to other forms of registered intellectual property, the Community Trade Mark and the Registered Community Design. The impact of this is that rights holders seeking E.U. wide protection for their invention must in fact initiate a costly application under the European Patent Convention designating each individual Member State of the Union. An EPC application will require separate validation in each designated State, in practice confining trans-European protection for inventions to large enterprises. In contrast, rights holders may register a Community Trade Mark or a Registered Community Design covering all States of the Union via a single centralised and cost-effective application. If implemented, a system of registration for an E.U. Patent would offer inventors and rights holders this same opportunity to obtain E.U. wide protection via a single validation in one cost-effective application.
In February 2011, the Council of the European Union authorised the use of the enhanced co-operation procedure in the pursuit of the “E.U. Patent”. The enhanced co-operation procedure is seen as a last resort to be adopted only in instances where the prospect of consensus amongst all 27 Member States is unlikely. In this instance, enhanced co-operation has been proposed by 25 of the 27 Member States of the E.U., on the basis that unitary patent protection within the Union cannot be attained within a reasonable period by the Union as a whole (i.e. all 27 Member States). The States will enter into enhanced co-operation with a view to finalising a system of registration for an “E.U. Patent” valid across those 25 Member States (at present, Italy and Spain are non-participating Member States).
Whilst it is regrettable that an E.U. wide protection for patents remains elusive in the short term, the use of enhanced co-operation amongst the vast majority of Member States will at least bring the E.U. significantly closer to the ultimate goal of establishing the E.U. Patent.