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.
THE COMMUNITY PATENT AND THE PATENT SYSTEM
|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
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
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
- What is the value of patents to United Kingdom
- 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
- 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
1st Report, 1986-87, HL Paper 17. Back