Select Committee on European Communities Twenty-Sixth Report

9 June 1998

  By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.


Green Paper on the Community patent and the patent system in Europe: "Promoting innovation through patents".


  1.    A patent is traditionally a monopoly conferred by the State which is enforceable only within the national territory. There is at present no authority which has power to grant a single patent enforceable throughout the European Union. The idea of creating such a patent, in the same way as there is now a European trade mark, has been under discussion for a long time. In 1975 the then Member States actually signed a Community Patent Convention under which a unitary Community patent could be granted by a central European patent authority. But the 1975 Convention, which was incorporated within the Agreement relating to Community patents concluded in 1989 (together "the Luxembourg Convention"), has not yet been ratified by all Member States, and therefore has not entered into force. Nor is it, in its present form, ever likely to do so. The reasons for its failure are discussed in the body of this Report.

  2.    There is something called a European patent but the name is slightly misleading. The 1973 European Patent Convention (the "EPC") set up a European Patent Office (the "EPO") in Munich which acts as a central examining authority. The parties to the EPC include four which are not Member States of the European Union and the EPO is not a Community institution. An applicant may (on paying the appropriate fees) designate all or any of the States which are parties to the EPC and the patent, if granted by the EPO, will take effect as if it had been granted by the national authorities of each of the designated States. Proceedings against infringers are thereafter in principle governed by the law of each State for which the patent is registered, although the Convention has also largely harmonised their laws of infringement. A European patent is for this reason, frequently described as a "bundle of national patents". The national patent offices continue in existence and applicants are free to choose whether to apply by designation through the EPO or separately to each national patent office.

  3.    The Commission's Action Plan for Innovation in Europe[1] proposed a general framework for action by the European Union and Member States to improve the innovation environment in Europe. One proposal was that the legal and regulatory environment should be adapted and simplified, and in particular that the patent system should be made more efficient, more accessible and less expensive. The Commission promised a Green Paper on the subject.

  4.    In June 1997, the Commission presented its Green Paper on the Community patent and the patent system in Europe. It identified ease of obtaining patents, legal certainty and appropriate geographical coverage as necessary criteria for the effective protection of innovation in the Union. It noted the absence of a single system of patent protection within the Community and asked whether such a system, including giving jurisdiction to a central court, would be used. It also asked whether new Community measures were needed and/or whether existing arrangements needed to be revised. The Green Paper provided the basis for an extensive consultation with industry, individual inventors, patent agents and other interested parties on the adequacy of the current patent system within Europe. In addition to receiving written submissions, the Commission held a hearing of interested parties in Luxembourg in November 1997. The consultation was formally terminated at the end of that month.

  5.    The Committee last looked at the issue of the Community patent in 1986. In its Report, A European Community Patent,[2] the Committee concluded that the setting-up of a Community patent system operating uniformly throughout the Community would be of major benefit to commerce and industry and would contribute materially to the smooth operation of the Single Market. The Report called for the introduction of a Community patent without further delay. If all Member States could not agree, that should not prevent a Community patent coming into existence and being operative in those Member States who could.

  6.    Sub-Committee E (Law and Institutions), whose members are listed at Appendix 1, decided to carry out an enquiry into the principal issues raised by the Green Paper surrounding the notion of a unitary Community patent. In part 4 of the Paper ("Further Harmonization at Community Level") the Commission sought views on a number of related and sometimes more technical questions (such as the patentability of computer programs and software related inventions). Though these matters are undeniably important the Sub-Committee decided not to look in detail at them but to concentrate on the central issue of the need for a Community patent. Witnesses were invited to consider all or any of the following questions:

- What is the value of patents to United Kingdom industry?

- What purposes do the present patent systems in Europe serve for the United Kingdom?

- What would be the main advantages and disadvantages of patent protection covering the whole Community?

- Would the Community patent system as devised in the Luxembourg Convention be used if it were to come into effect (ie if all necessary ratifications were made)?

- What are the weaknesses or defects of the Luxembourg Convention? Are the main/only problems those described in the Green Paper (translation costs and judicial arrangements)?

- Is there a case for further action at Community level?

- Should the Luxembourg Convention be turned into a legal instrument covered by the EC Treaty (ie a regulation made under Article 235)?

- What are the implications for the development of patent laws and policy at the national and wider international level? Is further harmonisation desirable, necessary, inevitable?

- What should be the relationship between any Community instrument and the European Patent Convention?

  7.    The Sub-Committee received the written and oral evidence from the witnesses listed in Appendix 2. The evidence is printed with the Report. We are grateful to all those who assisted in this enquiry.

1   The Commission published its action plan in response to a call made by the European Council at the Florence Summit in June 1996. The plan had three major objectives: to foster an innovative culture; to set up a legal, regulatory and financial environment conducive to innovation; and to gear research more closely to innovation. Back

2   1st Report, 1986-87, HL Paper 17. Back

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