Europeans Tongue-Tied Up In Debate Over Patent Reform

Dan Whalen is a JD candidate at Osgoode Hall Law School

At a meeting held in Brussels last week, EU delegates came no closer to reaching consensus on a unified European patent system. After years of proposals, the monumental task formally began last year after EU members agreed to create a single European patent and a centralized court that would deal with all patent disputes, two features conspicuously absent from the region’s current legal landscape.

To be granted an effectively Europe-wide patent under the present system, inventors make their filings to the European Patent Office, headquartered in Munich. They must then pay to have their patents translated to the official language(s) of each country where the patent will be recognized. However, each member state may have other “validation” procedure requirements as well. A recent EU study found that the cost of a European patent validated in 13 countries is made up of 70% translation costs and is tenfold more expensive than a similar patent in the US. Also, for want of a central court, patent owners and other parties involved are burdened by the additional costs of responding to legal challenges in each country. Thus there is considerable momentum behind the reform.

Unfortunately, the delegates have been deadlocked for months over what languages the proposed system should operate under. The stalemate is not altogether surprising, considering that the EU boasts 23 official languages. The European Commission, the executive body of the EU, proposed last July that patents be granted in one of its three working languages: English, French or German. The proposal was rejected by several members, most vocally Spain and Italy, on the basis of alleged linguistic discrimination. Belgium, the current occupant of the European Council’s rotating presidency, has since suggested the compromise that patent applicants be reimbursed for translation costs during a limited transition period. Alas, this proposal was also rebuffed at last week’s meeting. At this point, anything short of a pentalingual system does not seem to bode much chance of success. Absent such a concession, it remains to be seen if a system can be created that adequately respects the international diversity that it simultaneously attempts to constrain.