The common single European patent system has long been proposed but never yet adopted. The present system provides for grant of a single European patent which covers 27 member states. Once granted, the European patent is ‘validated’ in the chosen member states. Previously, this involved filing a translation of the entire European patent in the national language of the country concerned. As such, this validation procedure could be prohibitively expensive for many patent proprietors, and especially for individuals.
The London Agreement was then introduced in May 2008 whereby a number of the European member states agreed to reduce or abolish the translation requirement. This was in an effort to make the validation step of the European patent system more affordable. This has worked.
However, there are still many proponents wishing to see a single common patent system which provides protection throughout Europe and which effectively does away with the validation step and thus the expense of final translations. A main argument in favour of this single common European patent is to make obtaining European patent protection more comparable in terms of cost with that of obtaining US patent protection.
To date, all member states of the European Union have now indicated their willingness to join the common European patent system, bar Italy and Spain. The intention is presently to grant the common European patent in the three main languages, being English, French and German. However, both Italy and Spain are formally objecting to this at present.
The creation of a single common European patent system has recently hit a stumbling block in terms of how to actually enforce granted rights resulting from a unified European patent. The European Court of Justice has recently indicated that the creation of a European Community Patents Court to deal with matters concerning the single common European patent would not be compatible with present European Union laws, causing issues regarding enforcement of patent rights at a national and European level. It has been mooted that the single common European patent system could not proceed without also the creation of a unified patent litigation system.
If the single common European patent system does proceed, despite the potential cost savings, it will only inspire confidence and thus become a valuable asset if the resulting European patent rights can be implemented and relied upon fully and unambiguously within the framework of national patent laws of the member states.
Adrian Hocking
Patent Partner
Copyright Albright Patents March 2011