American companies may know better than anyone how tough it is to successfully protect patents across Europe, and this is no easier in the European Union, even after decades of trying to rationalize EU patent law.
But just before Christmas a cluster of European countries, not the entire EU, called for a single European Patent scheme, and it is likely that this move has enough momentum to end up dragging the rest of Europe after it. In the words of one observer, ‘We’ve been waiting since the 60s for something like this.’
At least that’s the impression we got when we talked to John Collins, a partner at intellectual property lawyers Marks & Clerk, based in London. Collins explained that there were a number of problems to harmonizing EU laws on patents, and these include the fact that the European Patent Office was set up not as a European Union body, so the EU and the European parliament have no control over it. Other issues include the fact that, as of now there is no centralized granting body, as the EPO was set up to be, and that patents had to be described in either English, French or German, but not in other languages. Given that in patent law, the description wording is everything, automatic translation systems can’t be used to support this and precise manual translation is essential. This also raises costs of filing in multiple languages and under multiple legal frameworks, and difficulties in testing whether or not a patent has already been granted in another language.
When a patent is eventually granted, the claims of the patent are then translated into all three languages and it is often only at this time that the patent can actually be challenged, as either obvious or resting on some prior art only described in another language.
The new grouping has been trying to commit to an agreement called the London Agreement which will unify and streamline the patent granting process in at least 12 of the 27 EU countries to start with. The London agreement takes in both members and some non-members including Switzerland, but not including Spain and Italy, who are particularly miffed by the fact that patents in their country will have to be written in a foreign language. A body of opinion is forming that once these 12 states put pen to paper, then more EU states be dragged in, eventually leaving Spain and Italy sidelined and having to cave in.
Now the European Commission has formally proposed unitary patent protection for these 12 member states while Spain and Italy have objected.
Michel Barnier, EU commissioner for Internal Market and Services, stated that the Commission intends to establish the system for enthusiastic member states, of which the UK is one, with the hope that all member states will eventually join.
A statement from Marks & Clerk said, ‘The countries supporting the mini-European patent are the key markets in most industries. Having such a patent could also pave the way for reciprocal recognition of judgments and in effect create a central patent enforcement regime covering the twelve countries, which we would welcome, given the problems with the European Patent Litigation Agreement.’
One of the big differences between the US patent system and the European piecemeal approach is that the European test of what is patentable is that it provides ‘a technical solution to a technical problem.’ In the US, software and business processes have famously appeared to have been patentable and this is achieved by calling the process a computer program or saying that it relies on a specialist computer.
However this has recently been questioned in US law by the Bilski decision, a June Federal Circuit appeal that rejected patents around methods of hedging risks in commodities trading. This was partly because the US test, that a specialist computer had to be built for it, did not fully apply. It has left questions over all software based patents and therefore business model patents.
This difference, which may become less and less relevant post Bilski, was really behind a move by the European Commission to put a directive through the European parliament a few years ago, which would both have set in place the framework for a centralized granting body as well as adjusting the European position on patentability to include business models. That failed at a European Parliament vote and the London agreement specifically avoids there being any change in what can be patented, and purely aims for a single granting body. This is to keep granting costs down, and make it easier for smaller companies to pursue patents in Europe.
What now needs to be decided is how to bring the EPO under EU rule, and decide what role the European Court of Justice will have in patent protection proceedings, likely to end up as the most senior European Court in patents. It may however need to defer most decisions down to a more technical court and that may need to be created from scratch, using specialists from the EPO.
All of this is why companies like Apple have not sued companies outside of the US regarding things like multi-touch patents and that the bulk of cellular patents have been decided in US courts and a change could offer a single European patent protection option which has the reach over 550 million heads of population. The consensus is that it will take another 3 years at least before all of this comes to pass, but that the London Agreement and the EU’s acceptance of it, is the first major step in the right direction for about two decades.