OPENING OF THE SYMPOSIUM AND WELCOMING ADDRESS
Benoît BATTISTELLI - President, European Patent Office - The unitary patent and the role of the EPO
I. Introduction
Honourable Chief Justice Susan Denham
Mr Minister, Richard Bruton,
Honourable Mr Justice Roderick Murphy,
Mr Controller,
Ladies and gentlemen,
It is a great pleasure for me to be in Dublin today and to address this very special audience. I would like to take this opportunity to warmly thank our Irish hosts for supporting the organisation of this event in such beautiful premises.
It is all the more a pleasure since we are celebrating with you the twentieth anniversary of Ireland's accession to the European Patent Convention, which took effect on 1 August 1992. Relations between the European Patent Office and the Irish Patents Office have always been close and fruitful.
Ireland's commitment to a modern, quality-based patent system is reflected, first, in a growing number of patent applications from Irish companies and by the increasing number of validated European patents taking legal effect in Ireland.
Our respective Offices have engaged in various forms of bilateral co-operation, focusing on the exchange of know-how and best practices in areas such as training, patent information, patent awareness raising, and the use of modern IT tools.
I am also particularly pleased to note the strong commitment of our Irish partners to promoting the use of patent information as a source of technical knowledge. Last year I was able to enjoy the hospitality and friendliness of your country during the EPO Patent Information Conference jointly organised with the Irish Patents Office in Kilkenny.
We are here today for the 16th session of the Symposium, exactly 30 years after the first event. Considered nowadays as the main gathering of European patent judges, enjoying the participation of judges from other continents, it represents a remarkable achievement.
I thank you all for the time you have devoted and your active participation which are key for this success. The scheduling of our session seems particularly well chosen. Indeed, after many years of discussions, Europe seems to be experiencing a momentum which will hopefully lead to a final decision on the two issues which interest us all: the unitary patent and the Unified Patent Court.
Let me briefly share some thoughts on the consequences it will have for the EPO and the European patent system.
II. The European patent system as it stands
First, what is the situation of the European patent system today?
The creation of the European Patent Office was a cornerstone of European integration. It replaced the previous patchwork of national patent systems with a comprehensive regional system enabling users to obtain patent protection in up to 40 European countries on the basis of a single application. It established a uniform, centralised procedure for searching and examining patent applications, with a consistent standard of quality. And it served, moreover, to harmonise the patent laws of the participant countries.
Everybody recognises that the European Patent Office is a European success story. Its creation unleashed a wave of increased patenting activity and made geographically broad protection simpler, cheaper and more attractive for patent applicants everywhere, not only within Europe, but worldwide.
In terms of sheer numbers, the EPO's success is overwhelming. When the Office was set up, the "founding fathers" estimated that it would be handling about 30 000 patent applications per year. That figure was exceeded within six years, and filings have risen steadily ever since. Despite the ongoing economic and financial crisis, 2011 was a record year: we received almost 245 000 applications, some 4% more than in 2010. 62% of these filings originated from outside Europe, notably from the US (24%), Japan (19%) and China (7%). But high filing figures is not an end in itself.
What is key to that recognition is the quality of our work. High-quality patents offering maximum legal certainty, thereby protecting the interests of both innovators and the public, are the basis of a functioning patent system. The EPO acts as a quality filter and has consistently striven to earn and maintain the trust of its users. As a self-funding organisation, our very existence relies on the confidence of our users in the quality of the services we offer.
III. Completing the European patent system
Nevertheless, ladies and gentlemen, efficient and successful though it is, the present European patent system is only a partial reflection of the original idea of a single, unitary patent for the common market - an idea which has so far failed to materialise, and to this extent, the European patent system is still incomplete.
Stakeholders have repeatedly drawn attention to the fragmentation of the patent system in Europe. In particular, the lack of a unitary title and the absence of a unified patent litigation system make the patent system complex and costly and hamper the enforcement of patents.
Completing the European patent system with a unitary EU patent and unified patent court is the only way that companies operating in Europe will be on a level playing field with their competitors in other markets such as China, Japan and the USA.
The unitary patent for the EU will make it easier to protect an invention across Europe by simplifying formalities and lowering costs. It will benefit all economic operators alike – enterprises large and small, public and private. Never before in the history of the European patent system have we been so close to creating a truly supranational patent protection scheme. A succession of EU Council Presidencies have put their diplomatic weight behind this project.
Most of you will remember that before the summer break, on 29 June, the European Council reached a breakthrough agreement on the unified patent court, specifically, on the seat of the court's Central Division - the issue which had been blocking the entire unitary patent package since the end of 2011. I am sincerely grateful to the political leaders who took this decision, as part of a set of measures to boost growth and innovation in Europe - and that is exactly what the unitary patent is about.
As you will also know, the European Parliament decided to postpone its plenary vote on the two Regulations implementing enhanced cooperation to September. I hope that the "cooling off" period during the summer has enabled the European co-legislators to find common ground.
This would also open the way for ratification by the participant states of the international agreement on the unified patent court.
IV. Making the unitary patent a reality: the unitary patent is a European patent granted by the EPO
Two Regulations were tabled by the Commission on 13 April 2011 and set out the basic architecture of the unitary patent, including the conditions for obtaining unitary protection, its legal effects and the applicable translation arrangements. These proposals will have to be complemented by implementing rules, to be adopted in the so-called Select Committee of the EPO's Administrative Council, a special body provided for by the EPC.
The proposed solution involves two main elements: one, giving unitary effect to European patents granted by the EPO for the group of contracting states which have opted for enhanced cooperation, and two: entrusting the EPO with the administration of the resultant unitary patents.
This architecture perfectly fits the mould foreseen by the European Patent Convention, which provides explicit authorisation to a group of EPC contracting states to give unitary effect to a European patent throughout their territories. Using the EPC's dedicated framework also avoids the risk of delaying implementation of the unitary patent. It is also a direct recognition of the quality of the EPO's work.
In practice, applicants will have to file an application for a European patent with the EPO as they do today. Once the European patent is granted, the patentee will be able to submit request to the EPO for unitary patent protection.
This is the easiest, fastest and most cost-effective way of implementing the unitary patent, avoiding the need to set up a brand-new patent office.
A further important aspect is that the unitary patent will remain optional, coexisting with national patents and traditional European bundle patents. I am confident that this flexibility in the choice of the appropriate patent protection will make the European patent system even more attractive for its users.
V. Administration of the unitary patent: the EPO as a one-stop shop for patentees
The unitary patent builds on the already well-known strengths of the existing system. The main difference lies in the post-grant procedure, which under the existing European system is handled by the national patent offices of our contracting states.
Administering the unitary patent will be an additional task for the EPO, which under the new scheme will act as a one-stop shop for patentees. Everything, from filing the request for unitary effect to paying renewal fees and keeping a register of unitary patents, will be managed centrally. For users of the system, this means a cost saving and a major reduction of administrative burdens.
The EPO already has the technical and legal expertise to carry out these administrative tasks, and preparations are under way to ensure that we are ready to take up our new role on the day the first request for unitary effect is filed.
I am confident, too, that the necessary implementation rules to be adopted by the 25 participating EU member states will be in place in time.
VI. Translation regime
The translation arrangements which are crucial to the unitary patent are built on the EPO's three-language regime, without any further translations to be furnished at the post-grant stage. It is a balanced solution of proven effectiveness and with broad user acceptance.
The Commission proposal on the translation arrangements provides for transitional measures until a fully functioning machine translation system becomes available. The EPO has taken steps to ensure that this will soon be the case.
Our web-based Patent Translate service, using Google technology, is already operational, offering free, high-quality machine translation for purposes of public information. The range of languages is continually being extended: by 2014, the system will cover all the official languages of our member states, and eventually it will also include the non-European languages most relevant in the patent world.
Patent Translate is already proving popular with applicants. Use of the new facility has been growing exponentially since the official launch in February 2012. From 2 500 translation requests per day we have now reached the figure of 35 000.
VII. The Unified Patent Court
Finally, there is the urgent need for a unified, centralised system for patent litigation, as the natural complement to the centralised grant procedure. The current fragmentation of jurisdiction, after the centralised patent-granting structure, is a further serious weakness in our system.
The unitary patent package depends on the entry into force of the draft Agreement on the Unified Patent Court. I sincerely hope, therefore, that the Agreement will be signed and ratified by a sufficient number of countries as soon as possible, following the breakthrough agreement on the seat of the central court reached in June 2012.
After long discussions involving all stakeholders, it seems to me that the proposed draft represents a good compromise between different European judicial traditions while addressing the specific needs of the user community concerning such trials.
But I shall stop there, as my colleague Margot Fröhlinger will give you a detailed presentation on the Agreement on a Unified Patent Court in the afternoon working session.
VIII. Conclusion
As I said at the outset, the foundation of the European Patent Office was a cornerstone of European integration. It is my personal conviction that we must now go on to complete the European patent system, with a unitary patent and a centralised, specialised patent court. This further step will render the system even more attractive for applicants and have a positive effect on innovation, growth and the competitiveness of European industry.
I see it as our duty to build upon the work done so far. More flexibility than ever before has been shown on this issue, and the necessary building blocks for a cost-effective supranational patent are in place.
The momentum now has to be sustained. I am optimistic about this, and I trust that we will be creative and innovative enough to ensure that the process is successfully concluded.
I hope that the adoption of the unitary patent package will be completed under the current EU presidency, held by Cyprus. If this proves unfeasible, I am sure that the incoming Irish presidency will manage to strike the final deal. Since joining the EU, Ireland has held the EU presidency six times.
During each term, its capacity for negotiation and compromise has facilitated significant developments, with positive effects throughout Europe. I have every confidence that the next Irish presidency will use these skills either to get the final package adopted or, if this has already happened, to drive forward the ratification process and the preparatory work for the Unified Patent Court, with a view to making it operational in 2014.
At all events, the EPO is prepared for the future and is ready to take on its role in a completed and re-shaped European patent system serving innovation in Europe.
Thank you, ladies and gentlemen, for your kind attention.