25 January 2006

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Business Today

Public consultation on EU patent regulations launched

The European Commission has proposed the creation of a Community Patent to give inventors the option of obtaining a single patent legally valid throughout the European Union. This would significantly lessen the burden on business and encourage innovation by making it cheaper to obtain a patent and by providing a clear legal framework in case of dispute. The Commission is of the opinion that the creation of a community patent is an essential part of Europe’s efforts to transform the results of research into new scientific and technological developments and so contribute to ensuring a competitive, knowledge-based economy throughout Europe.
Currently, patents are awarded either on a national basis or through the European Patent Office (EPO) which grants the so-called European Patent. The European Patent Office offers a single application and granting procedure and so saves the applicant the trouble of having to file with a series of national patent offices. However, each Member State may still require the need for the European Patent to be translated into their official languages. The Community Patent is seeking to address this by limiting the incidences in which translations may be required.
Currently patent disputes are referred to national courts. The procedures may be different in every Member State and potentially there can be 25 different interpretations of how the law as laid down in the European Patent Convention applies in a particular case. The Commission suggests that to deal with the disputes related to the question of infringements and validity of Community Patents, a new centralised Community tribunal within the framework of the European Court of Justice should be set-up. This has led to the introduction of a separate proposal entitled ‘Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance’ (COM (2003) 828), which basically provides for the instruments to set up a Community Patent Court as part of the European Court of Justice to hear disputes between parties about infringement or invalidity of a Community patent.
In April 2002, the European Parliament approved the Commission Proposal subject to certain amendments, particularly in so far as the language arrangements, the role of the national patent offices vis-à-vis the European Patent Office (EPO) and the judicial system, are concerned. In March 2003, the Council reached agreement on a common political approach regarding the Community Patent, which covered the principles and features of the jurisdictional system for the Community Patent, the language regime, the costs of the Community patent, the role of the national patent offices and the distribution of fees. In November 2003, the Council examined the outstanding issues concerning this Proposal. Agreement could not, however, be reached by the Council on account of problems in resolving the issue of the length of the period during which translations of claims can be filed. At present if seems difficult to reach a final agreement on this dossier. The main stumbling block is in fact the issue of the translation of the claims in the patent. The Proposal stipulates that the claims should be translated into all official EU languages. However, a compromise as to who will decide the legal validity of the translation and how to deal with the effects of a mistranslation, could not be found. A second bone of contention relates to determining the length of the period for filing translations. This is a key issue, as under the arrangements proposed, the Community patent shall be deemed not to have effect if the translations are not filed within the deadlines set.

Patent court
The European Commission has presented Proposals for two Council Decisions establishing a Community Patent jurisdiction, under the aegis of the European Court of Justice, to allow the resolution of disputes within the future Community Patent system, in particular those on infringements and on the validity of Community Patents.
The Proposal presented by the Commission would confer on the Court of Justice formal jurisdiction concerning certain disputes over Community patents in particular those concerning alleged infringements of patents and challenges to the validity of patents. This Proposal would also establish the Community Patent Court, whose seven judges would be appointed by the Council of Ministers, to exercise the Court of Justice’s jurisdiction on its behalf. It also sets up a specialised chamber within the Court of First Instance to hear appeals against the Community Patent Court’s judgements. In exceptional cases, a decision of the Court of First Instance could be subject to review by the Court of Justice.
Disputes on national patents or on European Patents granted by the European Patent Office (EPO) with effect for individual Member States are decided by the courts of the respective Member States. This means that bringing an action for infringement of a patent or contesting the validity of a patent may require bringing actions in a number of Member States, with all the difficulties and expense this entails. It is also possible that courts in different Member States may interpret patent law differently and reach incompatible verdicts.
In its endeavour to provide a more efficient and least costly system and in order to complement the Proposal on the Community Patent, the Commission through this Proposal is suggesting the establishment of the Community Patent Court which would operate according to a single set of procedural rules, with a uniform case law and with costs more affordable to users. Thus, the jurisdiction regime proposed would ensure that disputes over Community Patent rights are judged with EU-wide effect by a single centralised and specialised court. This would provide legal certainty for the protection of inventions.
The Proposal for a Community Patent Court is dependent on progress being made at EU level with regard to the Proposal on the Community Patent.
The Ministry for Competitiveness and Communications is calling for written submissions from interested parties on both proposals. The deadline for submissions is the 17 February 2006.
Written comments should be sent to: Michelle Bonello, Industrial Property Registration, Commerce Division, Lascaris Valletta or e-mail: ipoffice@gov.mt

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