Pages 193-197

INTERNATIONAL TREATIES

European Union

Resolution of the European Parliament, dated 19 November 1998 on the Commission Green Paper on the Community patent and the patent system in Europe: Promoting innovation through patents^*

The European Parliament,

• having regard to the Green Paper submitted by the Commission (COM(97)0314 - C4-0342/97),
• having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinions of the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Research, Technological Development and Energy (A4-0384/98),

A. whereas a consistent, effective Community law on patents is an essential element contributing to the competitiveness of EU companies,

B. whereas a Community scheme for the protection of industrial property must be something to which SMEs have ready access,

C. whereas an insurance scheme, by which legal costs in connection with legal proceedings will be covered, will give enterprises (including in particular SMEs) a fair possibility of defending their patent rights and thus strengthen their confidence in the patent system,

D. whereas the 1975 Luxembourg Convention and the 1989 Agreement relating to Community patents (which has not come into effect) do not provide unitary protection of patents within the European Union,

E. whereas, on the other hand, the current combination of the European Patent Convention and national patent systems constitutes an efficient and flexible patent system in the European Economic Area,

F. whereas patent law in the European Union must be harmonised in order to consolidate the internal market,

G. whereas, in this connection, the harmonisation of certain specific provisions contained in national laws is not sufficient; whereas a Community regulation should therefore be drawn up,

H. whereas urgent consideration should be given to the Community patent system and the effective implementation thereof within the European Union before enlargement commences,

I. whereas any proposal for the future Community patent system should take into account a comparative analysis of the patent systems which already exist in the USA and Japan and are in competition with one another; whereas, moreover, the comparative aspects of the analysis should include a study of the costs of applying for a patent, its administration and the potential industrial expansion of the European Union,

J. whereas it is an important condition for industry that national patent authorities are maintained, especially in the countries where the native language/languages are not one of the three official EPO languages,

K. whereas the Member States must not abandon their national languages, since a patent is a means of providing information concerning the state of technology and legal certainty,

1. Considers that the Community patent must form the subject of a Community regulation which has Article 235 of the EC Treaty as its legal basis;

2. Considers that the European Patent Office (EPO) should be the technical operator of the Community patent, in cooperation with national authorities;

3. Considers that, on a contractual basis between the EPO and national authorities, those of the latter which are capable of performing international search and examination may be given the task of performing parts of the EPO's work in connection with patent applications;

4. Considers that SMEs should be granted a 50% reduction in the total costs of applying for a patent;

5. Takes the view that the following principles should apply as regards language use:

• a patent may be applied for in any official language of the EU Member States; the grant procedure is conducted in that language (the EPO may of course use any language it wishes as its internal working language);
• the patent is granted in that language (every market operator already needs to comply with its competitors' national patents, which are in the national languages of the relevant countries; the Community patent, too, may therefore be granted in any language, as this will not impose additional burdens on market operators);
• the legal effects of patent infringement provisions (injunction and damages) may be enforced vis-à-vis another market operator only as from the date on which an official translation of the patent is served upon the latter; in the case of patent revocation or infringement actions, the official language of the court having jurisdiction prevails in any event;

6. Considers that national courts should have jurisdiction in patent infringement or revocation actions, that the substance of such cases should be examined by two national courts and that the European Court of Justice should be the court which hears appeals on points of law;

7. Considers that the Community patent system should coexist with national patent systems; believes that the possibility of choice of countries existing under the European patents system is sufficient reason for retaining the existing arrangements and that it is essential to introduce means of moving between the Community and European patent systems;

8. Considers that a reformed patent system which will overcome the problems of the present systems and help to stimulate innovation must be simple, quick, legally secure, accessible and low-cost, without involving excessive expense;

9. Considers that the Community patent should ensure the protection of inventions produced or used on board spacecraft and satellites, since such protection is not provided under current European legal systems;

10. Considers it necessary to introduce complementary measures to increase the attractiveness of the Community patents system, for instance a reduction in the existing retention fees; believes that it should be made possible for partial withdrawal from a Community patent to be effected by a limited number of states, by ceasing to pay the existing annual retention fees;

11. Stresses that, in the context of any fresh action in the field of patents, the question of prior utilisation or possession must be harmonised at Community level;

12. Considers that, with regard to national and European patents, the national patent offices would continue to play the same role and to exercise the same powers as at present. Those offices also have an essential role to play in the dissemination and promotion of the Community patent system, with particular reference to access by SMEs to that system;

13. Calls for the fees paid by users to be made over to both the EPO and the national patent offices and for the national offices to receive a percentage of the Community patent maintenance fees;

14. Notes that the mutual recognition of patent attorneys by the relevant institutions is a sine qua non for the simplification of procedures; considers also that other professional groups, such as business consultants, should be involved in the network of services associated with patenting, for instance to analyse research requirements and the definition of problems, patents research into the state of technology, etc.;

15. Calls on the Commission to establish a working group with the task of preparing one or more models of legal expenses insurance for the field of patents in the EU; takes the view that the working party should for instance study the financing of the scheme, insurance cover, level of premiums, an authority of control, etc.;

16. Believes that computer programmes should be patentable, provided the product concerned meets the conditions concerning the novelty and operability of a technical invention, as is the case at international level with our economic partners, the United States and Japan;

17. Instructs its President to forward this resolution to the Commission, the Council and the national parliaments.

See also OJ EPO 1997, 443 and 1998, 82 and 328.