EU claims breakthrough agreement on patents

Source: European Council

The Council has today unanimously adopted conclusions on an enhanced patent system in Europe. The package agreed covers major elements to bring about a single EU patent and establish a new patent court in the EU. Both together will make it less costly for businesses to protect innovative technology and make litigation more accessible and predictable. Today's agreement will pave the way for solving the outstanding issues to achieve a major reform of the EU patent system in the near future.

Vice President Günter Verheugen, Commissioner for Enterprise and Industry, said: "Making patenting less costly and more efficient was very high on the policy agenda since many years. In fact it was a priority of the Reform Partnership for Growth and Jobs, since it is a precondition for fostering innovation and competitiveness. Therefore, today's agreement cannot be overestimated. It comes at a moment when it is most needed."

Internal Market and Services Commissioner Charlie McCreevy said: "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. 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."

Enhanced patent system in Europe

The Council agreement encompasses the main features of a future patent court in the EU. A specialised patent court will allow cases to be heard before judges with the highest level of legal and technical expertise in patents. A unified court will also mean that parties do not have to litigate in parallel in different countries incurring high costs. Parallel litigation can amount at least € 500 000 in a typical case, which can be cut drastically by a unified court, saving as much as € 289 million each year for European companies. The court will include local and central chambers under a common appeal court. In the initial stages, parties will be able to continue to use national courts, allowing confidence to build up gradually in the new system. After this political agreement, the Council will now wait for a legal opinion on the new patent court from the European Court of Justice.

Ministers have also agreed an approach on an EU Patent Regulation. The Regulation was originally proposed by the Commission in 2000 under the Lisbon strategy but negotiations stalled in 2004. The creation of an EU Patent would help to improve the current situation where a patent designating only 13 EU Member States is already 11 times more expensive than a US patent. However, the creation of the EU patent will depend on a solution to be found for the translation arrangements which will be subject of a separate Regulation. A common understanding has also been reached on renewal fees and the cooperation between patent offices. Renewal fees will be set at a level to facilitate European innovation and foster competitiveness. Furthermore, the EU patent will involve partnerships between patent offices in Europe to allow synergies to be created to bring about more rapid delivery of patents and increase speed of access to market for innovative products and services. The European Parliament will now have the opportunity to debate the EU Patent Regulation.


The Commission proposed a Regulation for a Community Patent in August 2000 (now referred to as the EU Patent under the Lisbon Treaty). After a Council Common Political Approach in 2003, negotiations stalled and a final agreement was not reached. On the basis of an extensive consultation in 2006, the Commission adopted a Communication "Enhancing the patent system in Europe" in April 2007. This re-launched the patent reform debate in the Council. In particular, it suggested new avenues to explore on the patent court and translation arrangements for the EU patent.

Following progress in the Council on the litigation system which resulted in a draft Agreement on a common court for current European and future EU patents, the Commission adopted a Recommendation for a negotiation mandate from the Council. The court would be established by a "mixed agreement" between the EU, its Member States and third countries who are Contracting States of the European Patent Convention. In June 2009, the Council submitted a Request to the European Court of Justice on the compatibility of the draft Agreement with the EU Treaties. This opinion is pending.

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