Finnegan's Take

Patent disaster

I despair. After decades of promising to fix Europe’s broken patent system, it seemed like a breakthrough was on the horizon.

Political momentum was gathering.

The Belgian Presidency, experienced in navigating legal and linguistic problems, promised to make it a priority. The European Commission says an affordable, streamlined patent regime is fundamental to long-term prosperity.

At the risk of oversimplifying, there were two big problems:

– There is no single court to settle disputes on patents
– The cost of translating patents into a dozen languages is a barrier to SMEs who want to make the most of the internal market without jeopardising their intellectual property.

Maybe I was just being naive, but last year’s deal at the European Council, brokered by the Swedes in December, seemed to lay the foundation for progress.

The European Commission had already announced plans to set up a single EU patent court to end the ridiculous situation of having to defend intellectual property in national courts of every member state in the Union.

Then, last month, Commissioner Barnier set out a concrete (if controversial) plan to tackle the thorny old issue of translation costs.

There were still hurdles to clear, not least securing agreement of governments on the language issue. But, with the EU2020 strategy making innovation one of its flagship themes, and a new EU innovation plan due next month, we were finally beginning to believe.

Then this happened.

A leaked document from the European Court of Justice suggests the proposal for a single EU patent court is incompatible with European law.

For now, the ECJ can’t confirm that the document is legitimate (even though it obviously is), and the Commission are careful not to jump the gun until the Court confirms its position.

But, presuming all eight Advocates General interpret the law in the same way and rubber stamp the detailed views set out in the leaked paper, EU patent reform is once again marooned on a lonely island of legal technicalities.

So, how do we sell Europe as an ‘Innovation Union’ without a serious patent system?

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