The dream of a unified European patent may be close to fruition – with a translation breakthrough that could remove one of the sticking points among EU member states.
It started as a great idea. Although European patents, once granted (under the European Patent Convention), become nationally enforceable patents in the designated states, they could be expensive. For the patentee, enforcement must be carried out through national courts in individual countries. For a third party, revocation cannot be done centrally once the nine-month opposition period has expired.
The European Community patent (or EC patent), which would allow individuals and companies to obtain a single patent throughout the European Union, was proposed during the Lisbon Council of 2000 to fix the deficiencies of the EPO system, including large translation and enforcement costs for businesses. It was also meant to provide a patent right that is consistent across Europe, thus fulfilling one of the key principles of the Internal Market: the same market conditions should exist wherever in Europe trade is carried out, Obviously, different patent rights in different countries present a distortion of this principle.
But despite widespread support for an idea that would save companies the cost and effort of having to apply for patent protection under different national patent regimes, member states could not find a system that could garner general consensus. And today, patents continue to be awarded on a per nation basis through the EPO.
One of the most critical issues: the high translation and litigation costs that stand in the way of innovation. EU member states speak in 23 languages and costs related to translation and to working disputes through different national legal systems make patenting an invention in Europe so expensive that it creates a significant barrier to research and innovation. The cost of translating a European patent into just one other language is €1,400 - not including the time lost while waiting for translations to be completed. Disagreements on time delays for translation, the legality of patents in case of translation errors, and the number of languages required have practically put the proposal on hold. And alternative solutions such as The London Agreement and the European Patent Litigation Agreement have failed to move it forward.
Until now. The latest plans to resolve the problem – to be taken up at the coming EU Competitive Council meeting – involve using machine translations, already available in German, Spanish and French at the EPO. An recent article by James Nurton for Managing Intellectual Property revealed that the translation tools would include databases of several million standardized technical terms, which would be translated into all EU languages. Translations could be delivered in about 45 seconds.
The proposal ensures equal treatment by providing machine translations for all 23 languages. However, implementation could take several years and cost at least €2 million. Furthermore, existing technology would have to be improved to deliver the required accuracy – apparently, current technological constraints limit the ability of machines to produce word-perfect translations. Also, the translations will be for information purposes only, and would not be legally binding.
Still, with all these drawbacks – as well as vocal opposition presumably from individuals and groups who make their living from translation – it is expected that EU members will try harder to build on this positive development to finally make the community patent a reality. They cannot afford to do otherwise - in today’s global competitive environment, the patent issue is seen at a much higher level. And to compete, both business and political leaders are eager to find solutions. |
