European Patent Reform Suffers Another Setback

By James DeGiulio --

In March, it appeared that patent reform leading to a unified European Union (EU) patent was on its way to being enacted, after the European Parliament pushed the latest European Commission proposal through despite a dissenting minority of member countries (see "European Parliament Approves Enhanced Cooperation Procedure to Create Unified EP Patent System").  However, this view appears to have been too optimistic, as the European Court of Justice has ruled that a separate patent court would violate European Union law by taking powers away from courts in EU countries.  The Court of Justice is primarily concerned that the proposed patent court would not have sufficient checks and balances on its power.

The main selling point of the unified EU patent has been a reduction in costs.  While the unified EU patent would decrease application costs, the unified patent court was proposed to reduce duplicative patent litigation costs and provide a forum of specialized patent judges.  Unless the EU patent can be enforced by bringing just one suit, rather than separate suits throughout Europe, the benefit of the lower application costs may not be sufficient to warrant an overhaul of the current system.  It is not clear whether some countries will cite the lack of a single court as a reason to back out of the unified patent plan, and whether some will see the application savings as reason enough to keep supporting it.  However, without a clear patent enforcement mechanism, EU patent holders would have fewer assurances that their intellectual property is secure.

The European Court of Justice ruling can be satisfied if the Court of Justice receives appellate jurisdiction over the new proposed unified EU patent court.  However, many are opposed to such a solution.  The Court of Justice currently has the authority to rule on EU trademark issues, and has frustrated EU attorneys by providing inconsistent rulings over the years on simple matters of trademark law.  The proposed patent court, separate from the Court of Justice, was an attempt to address that concern.  Industry representatives have made it known that they would rather maintain the current system than evoke a system where patent questions go to the Court of Justice.

Despite the European Court of Justice ruling, the European Commission continues with its plan to create a unified EU patent, rolling out its latest proposal on April 13, noting that a unitary patent would still drastically reduce the cost of applying for patents.  However, the Commission is now weighing new ideas that comport with the Court of Justice ruling and that would meet the goals of the reform.  Most of the latest plans fail to put patent matters in front of a specialized patent court or do not solve the problem of disparate enforcement across EU countries.

For additional information regarding this topic, please see:

• "European Parliament Approves Enhanced Cooperation Procedure to Create Unified EP Patent System," March 1, 2011
• "Several EU Members Push for Unified Patent System," December 30, 2010
• "Europe Takes Step Closer to Single EU Patent and Patent Court," February 24, 2010

Comments

[Jared]

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entitled to enforce your patent. You are known in the world of patents and patent enforcement as a "non-practicing entity" or "NPE" -- or more rudely put, a "patent troll." For more information onpatent enforcement news and updates;
explore www.industryweek.com.