Patents and Utility Models: Community Patent Green Paper

The Commission has published a Green Paper reviewing the idea of a unitary Community-wide patent. This proposal was originally (in 1975) for a Community Patent Convention, but this has never been ratified, principally because of the cost of translating the specification into all the Community languages (now 11 and likely soon to be 26) and the unsatisfactory litigation procedures.

The current proposal attempts to deal with these concerns, but unsatisfactorily.

European industry, or at least "big" European industry, favours a specification in English only (no translation at all) and a Community Patent Court to hear cases at first instance and to consider validity and infringement together.

A report from the Economic and Social Committee of the European Parliment suggests that the Community should pay the costs of translations into all the languages; and that national courts should hear patent infringement and validity actions at first instance, but should only have power to invalidate a patent as between the parties to the dispute. Any final decision on validity could only be given by an appeal Court (a special patent chamber of the Community Court of First Instance) or the EPO.

There are also proposals about employee inventions, and insurance, which have generated no enthusiasm, and for utility models.

The next step is for the European Parliament to consider the proposal. A report to the Council of Ministers is expected in March. The Council will then decide how to go forward and give instructions to the Commission.

(A detailed commentary on the Green Paper is available from Cameron McKenna.)

The Commission has now, independently, produced a draft Utility Model Directive.