September 7th, 2016

Getting Patents in European Union Countries Can Be a Difficult Task

Currently getting a patent in European Union countries is a somewhat cumbersome process, regardless of the fact that there is a well established system to file only one application in European Patent Office (EPO) and eventually get the issued patent ratified in each member country.

By: Susanne Somersalo

The problem is that once the patent is allowed by the EPO, the applicant has to get the patent ratified in each member country, and this usually requires translation to various languages. It used to be that each country required translation to its own language: Finland to Finnish, Germany to German, Italy to Italian and so on. Today many of the European countries have signed so called London Agreement under which the member country no longer requires translation of the full patent to national language, but translation of the claims is enough. However, not all EU-countries are part of the London Agreement, and one still needs to translate the patent to many languages. The translation costs are usually substantial and getting a patent ratified in all EPO countries may amount to $25 000 and half of that may be translation costs.

Language problems are one issue, the other issue is litigation. Currently, when the patent is ratified in countries the applicant selected, each country will apply its own laws on enforcement of the patent. If the patent is infringed in Italy, the applicant has to litigate in Italy under Italian laws; if the patent is infringed in Germany, the patent shall be litigated under German laws that are different from Italian laws. One can imagine that such a process is painful and extremely expensive.

One of the major disagreements has been the location of a European Unified Patent Court. It may sound ridiculous that it has been discussed over 20 years where this court should locate. The major issue again has been the language: French do not want to litigate in German, Germans don’t want to litigate in English, Italians don’t want to litigate in Spanish and so on.

Finally, on June 29 2012, most of the European countries found a basis for an agreement. The European Unified Court will have its headquarters in Paris, life science patents will be handled by a court located in London, mechanical patents will be handled by a court located in Munich and finally there will be a regional court in Duesseldorf.

Sounds still confusing? It probably is, but this is a huge step toward getting a community patent in Europe. It would be a patent issued by the European Patent Office, and the patent would be valid in each member countries. No need for translations anymore, a patent written in one of the official EU-languages (English, French, German) would be valid everywhere. Litigation would be under EU regulations and litigation would be in European Unified Court.

Perhaps not very surprisingly, Spain and Italy refused to sign the agreement – due to language issues. So obviously if a community patent one day is reality, it will not cover Spain or Italy.


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