Harmonization of European patent systems

The harmonization of the European patent system aims to establish a consistent and unified framework for patent protection across Europe. A daunting task, the unification effort was throttled by the insurmountable fact that not all European countries are part of the European Union.

Historically, individual national patent offices operated independently, resulting in variations in laws and procedures. To address this, the European Patent Convention (EPC) was established in 1973, creating the European Patent Office (EPO) and introducing the concept of a European patent. This centralized system, which operates outside the scope of the Union, allows inventors to obtain a bundle of national patents in Europe.

The Unified Patent Court (UPC) and the Unitary Patent, in force since 1 June 2023, is the Union's culmination of efforts and compromises for a more effective system.

There are also narrower efforts at unifying international patent systems.

Dangers

The actual dangers come from side effects related to redistributing power from democratic entities toward entities which have shown a lust for expansive patenting:

• Many of the proposals suggest that the judges should be "experts in the field", which would mean many of them would be ex-patent lawyers, which is the most pro-software-patent of all demographics.
• Some proposals even give the European Patent Office power over the proposed court!
• This was already done in the USA, with the creation of the CAFC patent appeals court in 1982, and the result was a court which allowed ever broader patents, including software patents and business method patents.
• By making litigation cheaper, and by giving broader scope for damages and application of decisions, we could face a steep increase in patent litigation, including that of software patents.

An indication that these proposals are a back door to make software patents valid in Europe is the fact that they are being lobbied for by the pro-software-patent lobby.

Richard Stallman has pointed out that a harmonized European patent system would lead to total dominance of software patents:

Now they have contrived another sneaky method: the “unitary patent” system proposed for the EU. Under this system, if the European Patent Office issues a patent, it will automatically be valid in every participating country, which in this case means all of the EU except for Spain and Italy.

How would that affect software patents? Evidently, either the unitary patent system would allow software patents or it wouldn't. If it allows them, no country will be able to escape them on its own. [...]

The EPO has a vested interest in extending patents into as many areas of life as it can get away with. With external limits (such as national courts) removed, the EPO could impose software patents, or any other controversial kind of patents. [...]

Before adopting such a system, Europe should rewrite the plan to make certain software is safe from patents. If that can't be done, the next best thing is to reject the plan entirely. Minor simplifications are not worth a disaster; harmonization is a misguided goal if it means doing things wrong everywhere.

Procedural and democratic problems

By reducing the number of translations to one (just English) or three (English, French, German), the current plans all create the problem that people in countries which don't speak these languages are put in the position where they can violate patents (i.e. break the law) without ever having been able to read what they're supposed to not do.

No changes to substantive law

The creation of a unified court system does not involve changing the legislative definition of what is patentable - no changes to "substantive" patent law. Based on this, politicians deny that there will be any change regarding software patents.

Background

In order to understand how today's Unified Patent Court came to be, it is important to understand the long and complex history of patent law harmonisation in Europe. Professor of Law at the University of Bristol, Aurora Plomer outlines this process in three phases:^:508

In the first phase, the European unification project is driven by the Council of Europe as part of an abstract ideal of European integration and is characterized by a ‘‘coexistence’’ model based on common denominators in national laws. In the second phase, the harmonization agenda is taken over by the European Community and its rationale morphed into the community’s goal of (dis)integration of national patent laws and their replacement by a uniform and autonomous patent community system as a strategic tool for the realization of the common market. But the EC’s initiative is frustrated and results instead in partial harmonization with the adoption of the European Patent Convention in 1973 and the creation of the European Patent Organization. This opens a third phase and problematic for the European community which is having to integrate a pivotal external institution into a unified legal architecture to serve the community’s goals.

This table summarizes in chronological order the past successful and failed agreements and projects that aimed towards a harmonized European patent system.

Agreement	Scope	Year signed or voted	Parties	Outcome
Strasbourg Convention	Led to a significant harmonization of substantive patent laws across European countries.	1963	Member States of the Council of Europe	In force since 1 August 1980
Community Patent Convention	Aimed to establish a supranational patent system that would co-exist alongside national patents.	-	Member States of the European Economic Community	Failed
European Patent Convention	Led to the creation of the European Patent Office and the establishment of an autonomous legal system according to which European patents are granted.	1973	Member States of the European Economic Community, Member States of the European Free Trade Association, Greece, Ireland, Spain and Turkey	In force since 7 October 1977
Luxembourg Agreement	Aimed to create a supranational court that would handle appeals deriving from the national courts.	1989	Member States of the European Economic Community	Failed
Community Patent regulation proposals	Aimed to create a Community patent with unitary effect and a supranational court competent to hear infringement and validity cases of Community patents.	-	Member States of the European Economic Community	Failed
European Patent Litigation Agreement	Aimed to create a supranational patent court that would be independent of the EEC's legal order.	-	Contracting states of the European Patent Convention	Failed
Unitary patent regulations No. 1257/2012 and No. 1260/2012	Led to the creation of patents with unitary effect.	2012	Member States of the European Union	In force since 1 June 2023
Agreement on a Unified Patent Court	Led to the creation of a supranational patent court with competence regarding infringement and revocation proceedings of European patents and unitary patents.	2013	Member States of the European Union	In force since 1 June 2023

Early remarks of harmonisation (since 1873)

The issue of heterogeneity of patent legal systems had been raised already back in 1873 at the first International Congress of Vienna, subsequently in 1883 when the "Paris" International Union for the Protection of Industrial Property was created and later in 1932, at the Congress of London. However, the outcomes concerning the harmonisation of patent law in Europe were rather limited.^:47

Strasbourg Convention (1949–1963)

The Council of Europe, the major international organisation founded in the wake of World War II to uphold human rights and the rule of law in Europe, initiated, barely three months after its creation in 1949, the process towards the unification of the European patent system. The vision of a unified patent system for Europe resonated with the grander post-war vision of a closer union between European states as the key to economic prosperity and peace in a divided and war-torn Europe.^:510

Concrete proposals for a Europe-wide harmonisation of patent laws were only submitted in the post-war period.^:48 The Council of Europe’s Committee of Experts on Patents (CEP), formed in 1950 and made up of heads of patent offices and representatives of Member States, was asked to investigate further how unification could be achieved. Among others, the proposals considered at the time can be summarized as follows:^:921

The question of how to proceed occupied the first decade of work undertaken by the Council of Europe from 1949 on a European patent system. During that period, the Council’s Committee of Experts on Patents considered variants on three main proposals. The first was for a unitary patent coexisting with national patents. The second was for a system for granting ‘bundles’ of national patents, supported by a central (European) patent authority. And the third was for a convention requiring the voluntary unification of substantive aspects of national patent law. Thus, the only models not considered seriously during this period were ones aimed at replacing national laws; it having early been accepted that differences in national legal techniques and traditions would make that approach infeasible.

The first idea was proposed on 8 September 1949 and envisioned a European Patent Office that would operate under the aegis of the Council of Europe. The EPO's function would have been primarily administrative; specifically to issue a "European Inventors Certificate" to inventors who would have applied for it through their respective national patent offices. It would be a centralized procedure for the grant of patents that would not disrupt the national legal frameworks. This proposal was rejected partly because it was assumed that it would involve duplication of the role of the International Patent Institute at The Hague.^:511–3

It was the third idea that eventually resulted in the adoption of the Strasbourg Convention by Member States of the Council of Europe in 1963, which was the first and most important step towards the harmonisation of national substantive patent laws without creating a particular institution (neither for granting nor for enforcing patents). The Strasbourg Convention established the substantive basis for a European patent system in its provision for unified laws on patentability and the role of patent claims.^:49

The failed Community Patent Convention (1959–1975)

Before the Strasbourg Convention was concluded, the European Economic Community (EEC) already had several meetings discussing the problems raised by the lack of a uniform patent system.^:516–7 The Inner Six were particularly supportive of further economic integration, which was a necessary precondition for the politico-legal unification of Europe. To that end, a working group of patent experts was set up, which proposed a supranational patent system (what would later be known as the Community Patent Convention) that was initially ambitious enough to completely replace all national patent laws.^:50 A 1962 draft convention envisaged the creation of a European Patent Court with jurisdiction to hear appeals from a European Patent Office and competence to interpret the Convention.^:517

Later, discussions shifted to recognizing the importance of maintaining national laws and instead considering a parallel system where supranational patents would co-exist alongside national patents, with national courts remaining competent. Even then, the differing patent philosophies of the EEC states were deemed too significant and thus the CPC project was stalled.^:923–5

Crucially, in late 1968, the project had split into two distinct projects. One project insisted on the idea of a harmonised patent system for EEC members (the CPC). The other project would elaborate a broader, international convention open to non-EEC members (the EPC).^:926:519

European Patent Convention (1969–1973)

Main article: European Patent Convention

While the CPC project was on pause, a larger group of European states belonging to the EEC, the European Free Trade Association (EFTA), as well as Greece, Ireland, Spain and Turkey initiated the process of harmonising substantive criteria of patent granting, which would lead to a legal standard for the examination of European patents, acting as a bundle of national patents.

The birthchild of this process, the European Patent Convention (EPC), provisioned a central patent office for granting European patents called the European Patent Office (EPO). The EPO is under the auspices of the European Patent Organization (EPOrg) with the power to grant a European patent having the same effect in a contracting Member State as a national patent granted by that state. Requirements for the grant of a patent were lifted from the earlier Strasbourg Convention, whilst national exceptions to patentability are permitted in limited circumstances. Post-grant patent infringement and validity issues remained within the national legal framework. The EPC was ratified in 1973 (three years after the Patent Cooperation Treaty), entered into force in 1977 and is effective to this day.^:51

The EEC working group sought to embed the community patent in the EPC while the two models were developed in tandem. In fact, the EPC was meant to be a temporary compromise. In retrospect, it proved to be the biggest obstacle for a unified patent system in Europe:^:519

[O]nce harmonization was handed over to an intergovernmental organization outside the EEC, it would be very difficult for the EEC and Member States to control its direction. [...] The difficulty now facing the realization of the EEC’s goal of patent unification to serve the internal market was the emergence of a new transnational European institution outside the legal order of the EEC [...].

Researcher Justine Pila summarizes the different systems envisioned in parallel (and occasionally overlapping) by the Council of Europe, the EPC states and the EEC states:^:932

The central challenge for European patent reformers after 1949 was to create a supranational patent system without harming local interests and industry. For the Council of Europe the answer lay in a convention requiring the voluntary unification of aspects of substantive patent law. For the EPC framers it lay in a harmonized system for granting bundles of national patents requiring neither substantive legal reform nor a European patent litigation system. And for the EEC States it lay in a federal patent system: a system which would co-exist with national patent systems, and otherwise preserve national interests via the retention of domestic infringement and exploitation law and jurisdiction, territorial licensing, and the right to grant state-based compulsory licences.

The failed Luxembourg Agreement (1989)

The EEC states insisted on the idea of the CPC and proposed a new version of it. In contrast to the previous version, the new agreement envisaged the establishment of a Community Patent Appeal Court (COPAC) for centralising the appeals deriving from the national courts and providing a certain degree of uniformity on a second instance level. Again, the new agreement shared the fate of its predecessor and failed to obtain the necessary ratifications due to the complex litigation scheme and issues related to translating patent claims.^:53

The failed Community Patent (1997–2011)

The European Commission never let go of its vision. In 1994, the Court of Justice had meanwhile recognised the Community’s competence in the patent field wherever the Community’s goals concerning the free movement of goods and services and undistorted competition were at stake.

Efforts for a unified patent system were revived about ten years later in a Green Paper. The paper formed the basis for a Council Regulation on the Community Patent, which envisaged accession of the Community to the EPC, the creation of a Community patent with unitary effect, as well as a Community Intellectual Property Court that would be competent for invalidity and infringement proceedings over Community patents. A new draft proposal was presented in 2003 which renamed the new court to Community Patent Court. In both proposals, the new court would stand below the first instance level of the Court of Justice, which in turn would be competent for hearing appeals against the decisions of the new court. The Court of Justice would continue to hand down preliminary rulings in wait of which the new court would have to stay its proceedings.^:54–6 The proposals were criticized for their high costs of translation arrangements as well as their excessive centralisation of the proposed jurisdictional system.^:3

The failed European Patent Litigation Agreement (2004–2007)

While the Commission worked on a patent system that excluded states outside of the (now) European Union (EU), a parallel project was triggered on arranging patent litigation with the EPO's leadership in 2004. The EPO's working party initiated the European Patent Litigation Agreement (EPLA) and the European Patent Judiciary, a two-instance court for patent infringement and validity issues, encompassing the contracting states of the EPC. Structurally, the first instance court would have been divided into a central division (called the European Patent Court) and several regional divisions, while the court of appeal would have been centralised. Essentially, the European Patent Court would have equivalent powers of a national patent judge within a national jurisdiction. Due to the majority of the EPO's contracting states also being Member States of the Community, the EPLA's drafters included an article that would establish an avenue for the preliminary references to be made to the Court of Justice. However, the Court of Justice’s rulings would have been binding for the new patent court only if the decisions of this court had been enforced in the Community's Member States, which could have caused a split of patent jurisprudence in practice.^:9:57

While some Member States saw a danger in creating EPLA as a parallel jurisdiction to that of the Community’s judicial system, others deemed EPLA as a way forward for efficient patent litigation.^:7 UK judges in particular argued in their response to the Commission's call for input that the EPLA would have had "enormous advantages for patent users" for various reasons, including that the "questions of patent law would not go to the [Court of Justice]".^:58

The EPLA touched on issues of the acquis communautaire, and for this reason, the Commission was first included in the negotiations and was later on urged to take the lead.^:58 The Commission acknowledged the two parallel efforts and proposed what was labelled as "the Commission's compromise":^:10–11

The Commission considers as the main difference between options A [the EPLA] and B [the Community Patent] to be the fact that the EPLA option is developed outside the Community context, and that the present EPLA draft only deals with European patent litigation. This would mean that a separate jurisdiction for future Community patents would be required.

The Commission believes that consensus could be built on the basis of an integrated approach which combines features of both EPLA and a Community jurisdiction as initially proposed by the Commission. [...]

This could be achieved by creating a unified and specialised patent judiciary with competence for litigation on European patents and future Community patents. Such a judicial system could be strongly inspired by the EPLA model, in particular as regards the specificities of patent litigation, but could allow for harmonious integration in the Community jurisdiction.

The Council of the EU submitted another proposal in 2009. The new proposal once again emphasised the role of a new court, called the European and Community Patents Court (ECPC), that would have been competent for both the Community and the existing European patents. In the meantime, the Treaty of Lisbon had introduced Article 118 TFEU, which provisioned that "measures [shall be established] for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements".^:59 The new proposal seemed contradictory to this article, since it was open to the internationalisation of the Union's patent litigation.^:60

Since the draft agreement had reached its final stages, the Council requested the Court to give an opinion on the compatibility of this new court system with EU law. The Court concluded that the system as envisaged would be incompatible with EU law because it ousts the jurisdiction of national courts to apply EU law. The new patent court would be in the position to rule on not only the new agreement but inevitably on other EU laws such as EU competition law. This was seen as an interference with the integrity of EU law that would deprive courts of Member States of their powers in relation to the interpretation and application of EU law and the Court of Justice of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the foundational EU treaties. It was now evident that the Commission and the Council were so determined to reach a compromise that they almost disregarded the fundamental structure upon EU law is built.^:61

Unified Patent Court and Unitary Patent (2012–2023)

Main article: Unified Patent Court

Related pages on ESP Wiki

• Machine translation of patents
• Software patents exist in Europe, kinda
• Pro-patent bias in courts
• London Protocol
• Unifying international patent systems

External links

• Text of the Convention for the European patent for the common market (Community Patent Convention) (1976)
• Text of the Commission's Proposal for a Council Regulation on the Community patent (2000)
• Text of the Commission's Proposal for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent (2003)
• Text of the Council's Proposal for a Council Regulation on the Community Patent (2009)
• Text of the Agreement on a Unified Patent Court (2013)

This entry contains unprocessed external links.
The "External links" section should only contain links to related websites, not articles. You can help us digest the information contained in these links and include it in the body of the article with appropriate citations.

• The Proposed Unified Patent Court for Europe: conditio sine qua non for a Unitary Patent or unavailing venture into the unknown?, 15 Aug 2012, William Bull (on Patently-O)
• German original: Europe-wide court system for patents (English translations^[?]: Google, bing translator)
• EU Patent: Advocates General Suggesting To 'Rise The Bar' In a Different Way, 24 Aug 2010, IPJur - ECJ rejects centralised court proposal as "incompatible with the treaties"
• Spanish Government Knocking Down Compromise On EU Patent Languages Regime, 10 Nov 2010, IPJur - The Spanish government is standing up for democracy and rejecting a situation where Spanish citizens would be bound by legal documents written only in foreign languages
• Harmonisation of Intellectual Property in Europe, 1998, by Philip Leith