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Consensus lost in translation

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European ministers have reached agreement on a new EU-wide patent structure after lengthy negotiations but have failed to find a way past the biggest obstacle to an EU-wide patent: the cost of translation.

Ministers have approved a new litigation system to deal with a new Europe-wide patent in a deal that will still require the approval of the European Parliament and the Court of Justice of the European Union (CJEU).

"The EU patent will be cost-effective and remedy the current situation where it is much more expensive to get patent protection in the EU than in our competing markets," said a statement from the Government of Sweden. Sweden currently holds the rotating leadership of some EU bodies, including the Competitiveness Council which was the forum for negotiations.

"The Council conclusions also contain the main elements of a single European Patent Court that will try cases on both the EU patent and existing European patents. This will bring about a considerable improvement compared to the current fragmented system where patent processes have to be conducted in each individual Member State, despite the fact that they are for the same invention," said the statement.

"I am very pleased that we have finally seen a political breakthrough in these difficult negotiations that have gone on for so long. I am proud that the Council has now sent a clear and unambiguous signal to Europe's innovative companies that have long been calling for an improved patent system," said Sweden's minister for trade Ewa Björling.

The agreement fails to address the most contentious issue for any single EU patent system: translation. The major cost barrier to a single system is that any patent from one country needs to be understandable in all 26 other countries. The translation costs for long and technical documents are potentially enormous.

The Commission proposed a Regulation for a Community Patent in August 2000 but progress stalled, primarily because of the translation obstacle. The proposal is now referred to as the EU Patent under the Lisbon Treaty.

The Swedish government statement said only that "the translation issue will be resolved in a special regulation".

Currently the European Patent Office (EPO) awards patents outside of any EU governmental structure. An EPO patent is based on the European Patent Convention and it is really a bundle of 27 patents which can be made live in any country by a specific application, which involves translating it into that country's language.

EPO patents, then, are only protected in the countries for which an applicant pays for a translation. The EU governing bodies have long sought to create a system whose patents would automatically be valid across Europe, but this raises the issue of language: which language should they be in, which language should disputes be conducted in and who pays for all that translation.

The European Commission has tried for a number of years to create a pan-European system, but attempts have always faltered on the issue of translation costs.

Internal Market and Services Commissioner Charlie McCreevy has led those attempts.

"I welcome this political breakthrough as a very strong signal from the Council that the EU is committed to achieve a true single market for patents," said McCreevy. "A number of issues remain to be resolved and we undertake to work closely with the Council and the Parliament towards achieving a final package that will meet the trust and confidence of users."

The CJEU is expected to rule shortly on whether the proposed litigation system conforms to EU legislation. The European Parliament will then discuss the plan.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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