Tuesday, 12 October 2010

Ministers lock horns in tussle over patent lingo

Ministers continue to lock horns, but users say patents are too "deer"
It's no secret, but "Ministers still deadlocked on EU patent" is still a much talked-about feature of the current IP scene.   According to EU news site Euractiv today "A final deal on the EU patent was still being held hostage [PatLit wonders whether the use of such pejorative terms does much to ease the negotiating difficulties] by divergent national interests yesterday (11 October) at a Competitiveness Council held in Luxembourg".  While the grant of patents in Europe is not specifically a litigation issue, it has repercussions for litigation too.  Anyway, the Euractive piece continues:
"Moves to develop a single patenting system for the EU began in 2003 but progress has been hampered by linguistic, technical and legal difficulties. ...
The Commission presented in July a proposal to end the deadlock on linguistic disputes. The EU commissioner in charge of the dossier, Michel Barnier, proposed to maintain English, French and German as official languages for filing an EU patent (EurActiv 02/07/10). But this is opposed by other member states, namely Spain and Italy.
The Belgian Presidency has said overcoming legal and linguistic problems will be a top priority during its six months at the helm of the European Council (EurActiv 24/06/10).
EU ministers remain split between a group of countries led by France and Germany which support a trilingual system for the EU patent as proposed by the European Commission, and another group of states that oppose this solution and alternatively back a monolingual or multilingual regime.
The language used to file, contend and spread information about a patent is a crucial detail for countries' competitiveness. Researchers and small and medium-sized enterprises (SMEs) capable of using their mother tongue for patents will have an advantage over competitors that speak different languages [Linguistic competitiveness crops up elsewhere too.  Where official texts of Court of Justice rulings or Advocate Generals' Opinions are not made available in English, for example, until they have been made available in other official EU languages, English-speaking IP lawyers cannot confidently advise clients with regard to their content].
On the other hand, the current system, which protects all EU languages, has produced legal uncertainty and soaring costs, making patents more difficult and expensive to file in Europe than in other industrialised regions of the world [but a lot cheaper than easier than was the case 30 years ago.  It's easy to forget that a lot of progress has been made very quickly in historical terms].
At yesterday's Competitiveness Council, Belgium, which currently holds the rotating presidency of the EU, pointed out that under the existing system, a company willing to commercialise the same patent in all 27 countries must pay something like 25,000 EUR in legal and administrative costs. Some critics argue that this is in fact rather unlikely since most companies only register their patents in specific markets. Only a few multinationals are interested in taking on all the cost of operating their patents in every EU member state. SMEs, on the other hand, tend to use their patents only in bigger EU markets.
The negative consequences of this situation are two-fold, analysts have found. Firstly, the concept of the internal market is undermined at its roots as fragmentation between national markets remains the rule [But fragmentation exists with other IP rights, which may be national because there is no harmonisation, as in the case of second-tier patent protection, or because of cultural relativity, as in the case of trade marks which may be distinctive in one EU language, descriptive in a second and obscene in a third]. Secondly, countries where a patent is not registered often become hubs for counterfeit goods, which are then exported to all of Europe.
As an example, if a company decides to register a patent in Germany, France, the UK and Italy, the biggest national markets, the same patent would be left without legal protection in all other member states. In this scenario, if a cargo of counterfeit products were to arrive at the port of Antwerp in Belgium or Madrid airport in Spain, the owners of the patent would not be able to claim their rights against fraudulent activities [If the counterfeit products are merely in transit and have not been placed on the market within the EU, trade mark registrations are currently of no avail -- so if there's no local patent there's not much the producer of the genuine product can do]. ...".
PatLit will continue to watch negotiations with interest.
Unlocked Horns here

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