Select Committee on European Communities Report


81.  THE COMMUNITY PATENT AND THE PATENT SYSTEM IN EUROPE (26TH REPORT, SESSION 1997-98)

Letter from Dr Kim Howells MP, Parliamentary Under Secretary of State for Competition and Consumer Affairs, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  Thank you for your interesting and thorough report. I agree fully with the Committee's conclusion that the European Commission's Green Paper on the Community Patent raises some interesting questions. I am grateful to the Committee for its work, and for drawing the issues to the attention of the House.

  It is clear that there is substantial support within United Kingdom industry for a Community patent. I agree that a system of Community wide unitary patent rights would have advantages. However, as the Report rightly concludes, the success of such a system depends on keeping costs down, and providing judicial arrangements which will command the confidence of industry. Until these issues can be overcome, and this may take some time, it is important that actions towards a Community patent do not undermine existing patent systems in Europe. Indeed, as the Report concludes, a Community patent should increase choice and compete against current national and European arrangements for obtaining patent protection in Europe. In this way the needs of SMEs and others who do not require patent protection throughout the Community will continue to be met. I note that witnesses before the Committee spoke of the need for national and European patents to remain for the foreseeable future.

  The question of whether renewal fees for granted Community patents should in part be used to support national patent systems is very important. The financial implications of this and other questions arising from the possible introduction of a Community patent need to be clearly understood, and I agree that the European Commission needs to consider this issue in the near future.

  As to the cost of a possible Community patent, I agree that a substantial driver of costs is the requirement to translate patent specifications into each official Community language. The Report estimates that between 30 per cent and 60 per cent of costs are generated from this source. We would be happy to explore with our European partners options whereby the amount of translation, and thereby its costs, were reduced including, of course, solutions involving a greater use of English. However, as the Report appreciates, a number of member States have major cultural and constitutional difficulties with such a course of action, and the problems of achieving consensus should not be underestimated.

  The approach set out in the Green Paper whereby the Boards of Appeal of the European Patent Office would determine validity questions relating to Community patents, with a route of appeal to the Community Court of First Instance would, as the Report states, separate action on validity of patent rights, from action on their infringement, which would remain with designated Courts in the member States. I note that witnesses were unanimous in insisting that validity and infringement are interrelated and must be taken together, and that a preferred solution is to create a Community Patent Court at both first instance and appellate levels. However, I share the Committee's view that among other matters, significant practical difficulties would need to be resolved before a system of Community Patent Courts could be established. In the meantime, if existing national Courts are to play a role, it is imperative that Community patent litigation is handled by Courts with the relevant experience and expertise.

  Finally I note witnesses' preference for a Community patent to be introduced by Regulation. The uniformity and certainty this approach would produce would be valuable, but I understand the Report's concerns as to the limitations on Community judicial arrangements that this would bring, and the increased competence that this approach would cede to the Community in international fora such as the World Trade Organisation and the World Intellectual Property Organisations.

  We await further communications and proposals from the Commission and will bear in mind the points raised in the Report and those by witnesses to the Committee in our response.

3 November 1998


 
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