Background

The cost of filing and protecting patents in Europe is substantially higher than in the US and Japan, and business organisations have consistently complained about the fragmented and inconsistent decisions handed down by European courts.

Companies often have to fight legal actions in several European countries at once, and national courts regularly come to conflicting conclusions on identical cases. It is hoped a single patent court will make litigation cheaper and more predictable.

Which languages should we use?

The proposal by EU Internal Market Commissioner Mr Michel Barnier is to have English, French and German as official languages for an EU patent, instead of translating it into all official EU languages. Under this proposal, applicants will be able to file a patent in their own language, but will have to have it translated into one of the three official languages. “The costs for the translation will be eligible for reimbursement”, reads the European Commission proposal.

Italy and Spain have been the most vocal critics of Mr Barnier's proposal, advocating a semi-monolingual regime. English would be the only official language into which patents have to be translated. Applicants could also choose to file their patents in a second EU official language.

The Belgian compromise text tries to please Italy and Spain by allowing English documents only, but ‘only for a transitional period’ until the performances of translation machines have reached a sufficient level.

Deutsch bitte

The compromise text, however, leaves untouched the privileges granted to the French and the Germans. French and German applicants would remain able to file patents in their own language, while other Europeans would need to translate their applications into English, French or German.

Paris and Berlin argue that the European Patent Office (EPO) is located in Munich, and Germany is also by far the leading country in the EU in terms of the number of patents filed. In 2009, 18.7% of total EPO patent applications came from Germany. France is second, with a share of 6.6%, followed by The Netherlands, the UK and Italy. Four German companies were among the top 10 EU applicants in 2009. They are engineering companies Siemens and Bosch, pharmaceutical giant Bayer and chemical group BASF.

Legal complications

In addition, the Belgian government is now contending with a recent opinion from the European Court of Justice that the current plans for the European patent court are not compatible with the EU’s treaties. According to the advocate-general, this is partly due to the proposal that the court will only operate in English, French, and German, which would unfairly interfere with the rights of defendants who do not work in or speak English, French, or German.

The advocate-general’s opinion will provide ammunition for countries that oppose the three working languages proposal, which will make the Belgians goal of obtaining consensus on the language issue for EU patents by the end of their presidency that much more difficult. In the best-case scenario, the Belgian Presidency will take a step forward in December 2010 when an official Competitiveness Council is scheduled.

Reference

EurActiv. Belgian Presidency to test compromise on EU patent. 29 September 2010