By James DeGiulio --
On
December 4, 2009, the European Competitiveness Council unanimously
adopted a legislative package designed to create a single EU patent and EU
patent court. In a press release issued by the Council of the EU,
the Council concluded that enhancing the patent system in Europe is a
necessary prerequisite for boosting growth through innovation and for helping
European business. The EU patent reform package is designed to
circumvent many of the impediments to innovation that European companies face,
including the high prosecution costs of filing in multiple countries and the
legal uncertainty of patents enforced by one country and not another. This
uncertainty often leads to prolonged litigation disputes, as the average
litigation case under the current fragmented system lasts for 2.8 years. Critics argue that brand
pharmaceuticals take advantage of these time-consuming legal challenges to keep
generics from entering the market.
Under the current system, the European Patent
Office (EPO) serves as the primary examining body in Europe, but the issuance
of patent rights are still handled by individual countries. Under the proposed reform package,
rather than each country granting individual patents, the EPO would grant an "EU
patent," which would have unitary effect in the 27 member states of the
European Union. The European Commission has long argued that a fragmented
patent system and the absence of a single European Patent have impeded the
growth of technology companies in the EU. Indeed, according to the press
release, patent protection in 13 EU states costs 11 times as much as patent
protection in the United States. A similar EU patent plan was originally
proposed by the European Commission in 2000 under the Lisbon strategy, but
negotiations stalled in 2004 due to disagreements on language.
The reform proposal still needs to undergo an
official review by the European Council and the European Parliament before
being passed into law, since these changes will likely require amendments to the
European Patent Convention (EPC). In addition, the European Court of Justice has yet to
deliver an opinion on the compatibility of the patent court and draft agreement
with EU treaties. This opinion is expected at the earliest by summer 2010.
James DeGiulio has a doctorate in molecular biology and genetics from Northwestern University and is a third-year law student at the Northwestern University School of Law. Dr. DeGiulio was a member of MBHB's 2009 class of summer associates, and he can be contacted at [email protected].
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