Creation of common EU patent system faces legal setback

An opinion from the European Court of Justice could be a blow to IT innovators

The European Court of Justice looks set to derail plans for a common patent system across the European Union. The court's Advocate General believes that a centralized patent is "incompatible with the treaties" that created the E.U., according to a leaked document.

The news could have a knock-on effect for the IT companies responsible for a large number of patent applications. Computer-based inventions have had the highest growth rate among all patent categories presented to the European Patent Office (EPO) over the past few years.

European businesses have long campaigned for a single E.U. approach, which they say would encourage innovation. The current system of filing patents in each separate jurisdiction is expensive and impractical, in particular for small firms.

As well as indicating that the proposed centralized patent system might not comply with E.U. law, the opinion also expressed concern about implementation, and in particular the respect of a newly created patent court (PC) for existing laws.

"One should therefore not rule out the possibility that the future PC will ignore some of the principles and provisions of Union law or that it will not take them into account sufficiently when resolving disputes between individuals concerning patents. This fear is only reinforced by the fact that the provisions of the draft agreement on the training of judges of the future PC do not contain any reference to Union law," said a draft of a statement of position from the advocates general, seen by IDG News Service in English translation of a French original.

Until the latest leak, the question of the language of patent filings and their translation into other languages had been seen as the biggest stumbling block. The European Commission attempted to resolve this issue last month, but the proposal for a compromise language regime was also criticized by the Advocate General.

The leaked opinion is a non-binding document, but with the court due to give its formal decision before the end of the year, concerns that the proposed unified patent litigation system is incompatible with E.U. treaties could put an end to the plans once and for all.

The court's opinion is bad news for the Commission, as a streamlined patent system was expected to be a cornerstone of a new innovation strategy to be published next month.

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Jennifer Baker

IDG News Service
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