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The Financial Times is reporting today to subscribers only that there has been a major breakthrough in the creation of a Community patent in Europe – a single patent prosecuted at, and granted by, the EPO that would be valid in all EU member states.
Up to now, language issues have been one of the major stumbling blocks to negotiations.Many countries have been adamant that full translations of granted Community patents should be available in all official EU languages (or at least in their own). To do this, however, would be to negate one of the central attractions of a patent that would cover the whole territory of the EU: that it would be substantially cheaper than filing a traditional European patent application or going through national patent offices.
But now it seems as if Commission officials believe they have found a way around this: machine-based translations that could convert a Community patent into all the official languages of the EU (there are currently 23 of these). The translations would not be legally binding, but would be for information purposes only. Although the article does not say, presumably the legally-valid version of the patent will be issued in the language in which the original application was submitted, or will be in one of the three official languages of the EPO – English, French and German. If a patent were litigated, manual translations would be required – however, on current statistics, this would apply to just 1% of grants.
This all sounds very clever, except I wonder whether machines are currently good enough to provide translations that can be relied on. I can certainly see that being an issue that will be raised by groups representing people that currently provide patent translations in Europe. There are, for instance, a number of European countries where the vast majority of the work done by patent attorneys is based around translation work. I have heard that in Spain, for example, 75% to 85% of income comes from this source. I would not be surprised if it were the same in Italy and many of the central and eastern European countries as well. If this is the case, people are going to fight tooth and nail to protect their livelihoods.
That said, patents in Europe are now seen as an important issue at a much higher level than was previously the case. This means that it will much harder for individual interest groups to hold things up. While, in the past, Community patent talks were conducted at a relatively low level with no-one higher up demanding progress, now political leaders are keen to find solutions. It is this, more than anything else, that has created the momentum for change over the last year. Indeed, the FT quotes a Commission official as saying that “major political decisions” may be made in the second half of 2008. “We are starting to move towards a legislative framework ... we are convinced that 2008 is a very important year for patents.”
Of course, France takes over the EU presidency on 1st July 2008 and it has long been rumoured that the French are looking to make some big announcements during their time in charge. It was the election of Nicolas Sarkozy as French President last May that led to France ratifying the London Protocol on Translations, something that his predecessor Jacques Chirac had been steadfastly against. An announcement in the second half of this year that the Community patent was to be introduced, alongside a single European patent litigation jurisdiction, would be a considerable triumph for Sarkozy. Those who have followed developments closely over the last 12 months would also recognise the significant roles played by the governments of Portugal and Slovenia. Both have invested considerable time and effort in developing momentum for change during their EU presidencies (second half of 2007, first half of 2008 respectively), despite the fact that neither are noted hotbeds of patenting activity.
However, we should not run before we can walk here. Nothing has yet been agreed on either the Community patent or the litigation front. And even if political consensus can be reached among member states, there will be very vocal opposition to change not only from those who stand to lose valuable sources of income, but also from groups that believe a single European patent system will facilitate patenting in areas such as biotechnology and software. You can guarantee that they will make their voices heard very clearly.