France wants Community jurisdiction over European patent
France, supported by several other EU Member States, has said it wishes for the future European patent to come under Community jurisdiction, rejecting a previous proposal from Brussels to create jurisdiction between governments.
France, supported by several other EU Member States, has said it wishes for the future European patent to come under Community jurisdiction, rejecting a previous proposal from Brussels to create jurisdiction between governments.
At a meeting of the European Ministers responsible for industry, the French Industry Minister Francois Loos expressed his preference for a system involving the Court of Justice of the European Communities (CJEC) to examine the conflicts linked to a future European patent.
Backed by the companies who are complaining of the complex and expensive system currently in force in Europe - particularly compared with the US system - the community patent has been under discussion for 20 years. The project has been paralysed due to divergence between member states, in particular on aspects of translation and responsibility for jurisdiction.
The European Commission, which had previously announced that there would be proposals before the end of 2006, will have to review its copy to take into account the positions of approximately 10 states who support the French position.
The European Commissioner responsible for the internal market, Charlie McCreevy, suggested this year that the 25 member states should ratify the European Patent Litigation Agreement (EPLA), which provides for the creation of a single jurisdiction for the European States and which would go beyond the EU members alone.
Several countries, in particular the UK and the Netherlands, are in favour of the EPLA, considering that the companies will gain in terms of costs and speed. France, however, supported in particular by Italy, Spain, Portugal, Greece, Ireland and Luxembourg, does not want the EPLA, preferring a jurisdiction proper to the Community which would, it believes, provide increased legal security.
The system desired by France provides for the creation of jurisdictions at national level that would rule in first instance, with the possibility of appeal with the CJEC.
In the absence of agreement between the member states, the situation is at a standstill. Germany has said that it will put the matter on the table when it assumes the EU presidency in the first half of 2007.
Currently, companies must submit patent applications in each member state, which ends up being expensive, particularly where there are legal disputes. The average cost of a patent in Europe is e31,600, 22% of which is for translation expenses, according to data from the European Patent Office, a body which is not part of the European Union.
Translation itself poses further problems. The companies want a single language to be used to reduce the costs of translation and to avoid legal disputes linked to potential translation errors. The Member States, however, have not managed to agree on this.
To simplify the current linguistic system, which requires translation of the patent in each State where companies wish it to be valid, seven countries have ratified an agreement entitled the London Agreement. This limits the obligation for translation into the national language to one part of the patent -'the claims' - the complete translation being necessary only in the case of a legal dispute.
France's ratification is needed for the entry into force of the London Agreement, but up to now it has been marking time. Those in favour of the Agreement are optimistic, however, particularly since the Constitutional Council ruled last September that the Agreement was in conformity with the fundamental French law that stipulates that French is the language of the Republic.
According to the current system, a company wishing to register a patent in Europe has two choices: requesting a European patent from the European Patent Office, which brings together 31 countries, or making a national application. In both cases, the patent must be translated to be valid in each national jurisdiction. The European patent will in any case be available as national patents, which will be examined in the case of conflict by each national jurisdiction.
According to the EPO, the division of conflict responsibility, apart from its cost, leads to a lack of legal security. This is particularly because of differences in interpretation of the European Patent Convention by the different national judges.