Industry Experts Not Impressed by EU’s Single Patent System

July 25, 2012 2:40 pm

Leaders of the European Union agreed on 29th June to create a single EU Patent System and to establish a European patent court, which will have its headquarters in Paris with two specialised divisions in London and Munich. Most industry experts, however, have expressed their disappointment and concern over the deal.

Although Hiroshi Sheraton, of McDermott Will & Emery in London, called the agreement ‘a major breakthrough, after over 40 years of failed negotiations and discussions’, Mark Owen, of Harbottle, classified the document as ‘a huge piece of Euro-fudge. A solution which no-one can possibly think is perfect, or even nearly good enough.’

James Boon, of Bristows, stressed ‘it is possible that in practice the new regime will encourage businesses to move out of Europe.’

‘Having an EU-wide trademark and not having an EU wide patent is a weird position under EU intellectual property law, but whether creating one is a positive move, I don’t know,’ said Vanessa Barnett, partner at Charles Russell in London.

The new European patent system should make it ‘cheaper’ to get patent protection with unitary effect in most EU Member States and ‘the single court will allow disputes to be resolved once and for all for the entire continent, except Spain and Italy,’ said Sheraton. ‘It will avoid complex, expensive and potentially conflicting multi-national litigation across different EU states.’

There are fears the EU will fragment further under this attempt at harmonising Patent laws.

However, Boon said the cost saving argument is ‘likely to hold true for companies wishing to apply for a patent in a large number of states but the new unitary patent may be no cheaper than applying for a European Patent and designating two or three key territories.’ Owen went even further and called the ‘current solution a recipe for confusion and expense, precisely the two things the whole exercise was supposed to avoid.’

Owen fears ‘the EU patent will be too fragmented from the very start. The trouble is that engagement with the issue by politicians, national IP offices and the relevant professions has all come too late, and as a result reason and sense have been sacrificed.’ Barnett does not think ‘an EU patent court would have sufficient depth of specialist judges or technical expertise resources to be able to deal with the range and volume of patent claims.’

The European Parliament is expected to vote in the next few months on the agreement of the Council of Ministers.

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