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Europe takes big step towards unified patent process

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 Un

By PETER WHITE

Published: 6 January, 2011

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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.

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