Local view for "http://purl.org/linkedpolitics/eu/plenary/2002-04-09-Speech-2-244"
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"en.20020409.10.2-244"2
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". – The Commission welcomes the report prepared by Mrs Palacio Vallelersundi. At a moment when the Council is still struggling with the Community patent, it is important that Parliament should deliver its opinion on this difficult and complex issue. The report of Mrs Palacio Vallelersundi addresses all the key issues that are relevant to the Community patent.
Let me give some examples of the costs that would be involved: there would be EUR 17 000 for translations just in the Community of 15 Member States. Last but not least, costs must be evaluated, taking account of enlargement. Translations into 19 Community languages, excluding Maltese, would cost around EUR 31 500 per patent.
For all these reasons the Commission cannot accept the following amendments: Amendments Nos 2, 22, 31, 32(2), 32(3), nor Amendment No 36. The Commission would like to accept Amendment No 34.
This does not mean that the Commission would systematically oppose any translation requirements of a part of the patent or patent application or of other information. After all, there is the patent in its entirety, a summary and the claims. So we may be talking about different requirements for translation. The Commission could accept such translations of parts of the patent provided that they were truly useful and that the overall Community patent system remains affordable, simple, cost-effective and legally certain.
In this respect Amendment No 25, part of Amendment No 19(1), 30 and parts of 32(1) and 32(4) merit closer evaluation. But parts of Amendments Nos 19(1), 19(2), 19(3) and 19(4), part of Amendments Nos 20, 28 and part of Amendment No 31(4) are unacceptable.
Firstly, there is no reason to require a translation of the patent into the language in which the initial application has been submitted. That already exists.
Secondly, the Community budget should simply not be used to finance translations, nor should applicants be obliged to use the translation services of the European institutions.
Thirdly, the patent should be published by the European Patent Office in the Community Patents Bulletin and not in the Official Journal of the European Communities.
Fourthly, Article 44(3), as proposed by the Commission, offers sufficient guarantees to protect third parties in good faith. There is no reason to require further formalities from a patent holder who wishes to enforce his patents. On the other hand, Article 11(3) cannot be deleted because it corresponds to Article 44(3); it just applies in the pre-grant phase.
Finally, the procedural languages of the courts will have to be determined in a separate context and not here.
The Commission also has difficulties with Amendments Nos 23, 24 and 38 on the relationship with the European Patent Organisation. The Commission continues to believe in a user-friendly system where applicants can obtain a European patent and a Community patent in one go from the European Patent Office. The accession to the European Patents Convention will enable this. It will also enable sufficient legal and political control over the European Patent Office, taking into account that the European Patent Office is not a Community body.
Several of the proposed amendments enshrine principles that the Commission is ready to consider favourably. Firstly, there is the principle enshrined in Amendment No 8 to allow testing for the sole purpose of receiving market authorisation after the expiry of the patent – the so-called Bowler exception. The Commission has already proposed a similar line in its revision and whilst not committing myself to the exact wording, I can inform Parliament that the Commission will carefully consider the issue, taking into account the need for the Community patent and Member States' national patents to produce identical rights. But Amendment No 18 on the same issue goes too far and cannot be accepted.
As far as the judicial system, about which a number of Members have spoken, is concerned, the Commission is prepared to consider Amendments Nos 26 and 29 in principle, but in the light of the new EC Treaty provisions – namely Articles 225a and 229a – adopted by the Nice Treaty. The Treaty introduced the possibility to set up Community judicial panels to handle cases in first instance with the possibility of appeal to the Court of First Instance of the European Communities. The setting up of such a system would naturally be possible only once the Nice Treaty has entered into force and it requires a separate Commission proposal.
However, the Commission has major difficulties with Amendments Nos 3, 4, 5 and 10 to 17. There should be a high level of expertise and unitary case-law right from the start. That pleads for a centralised Community jurisdiction. The system proposed in the amendments would not provide this, because some national courts would have so few cases to handle that they could not build up or maintain the necessary expertise. That could result in divergent case-law and quasi-systematic appeals to a higher court. This would imply higher litigation costs and also that parties would have to wait longer for the final decision.
I should also like to recall that it is highly doubtful whether the articles of the EC Treaty, to which the amendments refer, would allow a system as proposed in those amendments.
As regards reporting on the application of the regulation, the Commission is ready to prepare the first report at the latest within five years of the entry into force of the regulation. Should the Commission believe that earlier reporting is required, it will do so. Moreover, the formulation in the Commission proposals, which focuses on the costs for obtaining and renewing the patents, should already cover all relevant cost factors. It also goes without saying that the Commission will propose amendments whenever this is appropriate. Therefore the Commission cannot, regrettably, endorse Amendment No 33.
Finally, the Commission considers that Amendment Nos 35 and 37 are unacceptable. The Commission has presented a proposal for a directive on the patentability of software-related inventions, which is now before Parliament and the Council. Therefore a debate on this question should be carried out in that context and not in this.
I would like to thank Members for their support and collaboration on this important regulation. I hope that Europe will soon be able to improve its performance at the global level by offering its industry a competitive, unitary, affordable and legally secure Community patent.
A second example regards Amendments Nos 1, 6, 7, 21, 27 and 39. These amendments refer to the national patent offices. The Commission recognises the important role of those national patent offices. The Commission can also agree in principle that they should participate in the processing of Community patent applications provided that four conditions are met: first, to ensure the quality and uniformity of Community patents, national patent offices and their participation should be set in a properly defined framework. Partnership agreements with the European Patent Office, with quality criteria and mechanisms for quality control would constitute a proper framework.
Secondly, national patent offices' participation could go as far as doing the prior search – a suggestion made earlier this evening by Mrs Palacio Vallelersundi. Thirdly, the applicant should always be free to ask that his application should be processed exclusively by the European Patent Office.
Finally, national patent offices and their participation should be restricted by clear quantitative limits. But even with this clarification, I should like to stress that the participation of national patent offices is a matter on which the Community alone cannot decide. It is thus not an issue for the regulation but should be negotiated in the framework of the European Patent Organisation.
A third example is Amendment No 9 on the distribution of income from renewal fees. While the Commission can agree to the principle of distribution of part of the fee income to Member States or their patent offices to be used for innovation promotion purposes, it nevertheless considers that this issue should be dealt with in the context of the European Patent Organisation. It remains to be discussed whether the importance of the patent office is the right distribution key.
Some of the proposed amendments are not in line with the objectives of the Community patent and cannot therefore be accepted. Today the driving force for a Community patent is the competitiveness of European industry at a global level. There is no point in creating an instrument unless it is affordable enough and offers a sufficient level of legal certainty for it to be used by our inventors and our industry. The Commission continues to believe in affordable language and translation regimes. Here two different issues are involved.
The first one is the language for the processing of patent applications and for the granting of the patent, including translations of applications. The European Patent Office functions well with a three-language regime. It is not necessary to modify it, whether by reducing the number of languages, as has been suggested by some, or by adding more languages. In particular, adding two or more working languages to the European Patent Office would considerably complicate its work. It would put a heavy burden on its cost-effectiveness. The European Patent Convention allows, in principle, EU citizens to submit the initial application in their own language and compensation is provided for those applicants who must translate their applications into one of the working languages of the European Patent Office. I should also like to add that the language regime of the European Patent Office cannot be decided by the Community alone. That is the first issue.
The second issue concerns translations of the patent once it has been granted. If the amendments imply that the patent would have to be translated in its entirety into all official Community languages which soon will be either 19 or 20, depending on whether Maltese becomes an official language, this would make the patent so expensive that the Community patent system would simply not be used. I remind Parliament that we have been here before. There has been a Luxembourg Convention which required translations of the whole patent into all the official languages. That convention has remained a dead letter – it has never been used. Surely we do not want to repeat the same mistake."@en1
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