CRE - Wednesday, 5 July 2000 - ITEM-008 Index Previous Next Full text Debates Wednesday, 5 July 2000 - StrasbourgOJ edition Proposal for a regulation on a Community patent President. – The next item is the Commission communication on the proposal for a regulation on a Community patent. Bolkestein, Commission. – Mr President, I am very grateful for this opportunity to inform Parliament about a decision which was taken by the Commission this morning relating to a proposal for a regulation to create a Community patent. That is in line with a request from the Lisbon European Council, which called for such a Community patent to be in place by the year 2001. Parliament explicitly supported this initiative in its contributions to the extensive consultation process which the Commission launched through its Green Paper on Innovation in Europe in 1997. We need a Community patent in order to stimulate innovation, which is a key factor for growth, competitiveness and job creation in Europe. Our industry, as well as our research and scientific community, have stressed for some time now the need for a patent which is affordable, valid throughout the Community and which offers legal security. That is an ambitious goal. Our proposal meets this ambitious goal as it aims at creating just such a patent. The Community patent will co-exist with, and complement, existing systems by offering a more attractive alternative for those businesses, both big and small, operating within the internal market. Our proposal builds extensively on the existing European patent system which governs the rules and procedures leading to the grant of European patents, and this approach requires that the Community should adhere to the European patent convention. By virtue of the Community patent regulation, patents delivered by the European Patent Office in Munich may become Community patents. The Community patent as proposed by the Commission will have the following characteristics: a Community patent will have a unitary character, it will be valid throughout the Community and it will be the subject of a single set of rules. This will reduce the uncertainty linked to fifteen different national legislations and, of course, after enlargement, many more. Legal certainty will be considerably reinforced by the creation of a centralized judicial system which will guarantee the quality and coherence of case law relating to Community patents. The creation of such a centralised jurisdiction requires a change to the EC Treaty. We now have a window of opportunity with the ongoing Intergovernmental Conference. We must not miss that opportunity and I should like to count on the vigorous support of Members of this Parliament in order to ensure that the IGC takes up this issue in all earnest. Finally, our proposal will help to reduce considerably the costs of patents in Europe by not requiring supplementary translations of the patent once it has been delivered in one of the three languages of the European Patent Office. May I insist on the need for an ambitious approach. Previous attempts to create a Community patent, in particular through the Luxembourg convention of 1989, failed because of a lack of ambition on the two key issues: firstly, the cost and secondly, the litigation. We must convince Member States of the need to change the Treaty to create a centralised jurisdiction for Community patent litigation. When looking at our proposal, one should also anticipate the consequences of enlargement on the costs and litigation in this respect. If we are anything less than ambitious in this field, we shall simply not provide our industry, our research and development experts with the modern patent which they need. Fraisse (GUE/NGL). – (FR) Mr President, Commissioner, the proposal for a regulation on a Community patent gives us the chance to review cooperation, as you have just said, between the European Patent Office and the Community institutions. The patent recently issued to the University of Edinburgh poses the problem of the status of the EPO and how to control it. In the light of what has now been referred to as a mistake, it would appear that Directive 98/44 on the legal protection of biotechnological inventions is inaccurate and ambiguous, especially Articles 5(1) and 5(2). Should the Commission not propose a revision of this directive in order to preclude the possibility of patenting the discovery of a gene or genetic sequence? We must not skimp on this question, especially now that we are introducing a Community patent. Kauppi (PPE-DE). – I am very happy to hear that the Commission has decided to limit the number of languages that can be used for the Community patent. At the moment translation costs are the biggest problem when we try to reduce the costs and speed up the process. I warmly welcome the proposal and hope that the IGC is ready to make the necessary changes to the Treaties. But I would like to ask a specific question concerning the process in EPO. I was under the impression that the process itself would remain more or less the same in the new system. Why is it that at the moment the EPO uses the system of many experts instead of the system of one expert, which is in use in Japan and the United States? There the patent is granted when one expert has given their opinion. That is also a factor in making the process in Europe more costly and slower than that of our competitors. Palacio Vallelersundi (PPE-DE). – (ES) Mr President, I would like firstly to congratulate the Commissioner. I believe that this is a great achievement. As he has said, this is probably the most ambitious internal market project we are currently dealing with and I am happy to say this on behalf of the Committee on Legal Affairs and the Internal Market, and as rapporteur on this issue. It is ambitious, Commissioner, because, in addition to what you have said, there is a fundamental reason, based on the principles of the internal market, for having a Community patent. If we want our internal market really to be a domestic market for companies and consumers, the current fragmentation suffered by patents, resulting from national borders, makes no sense. Having said this, it is an ambitious and difficult project, because, as you have mentioned, it requires a change to the Treaty and to the constitutions of at least four or six Member States. Therefore, Commissioner, I pray that there will be excellent cooperation between us, which we are going to need, and the capacity for negotiation so that this project can be taken to its conclusion. Bolkestein, Commission. – Mr President, thank you for giving me the opportunity to reply to the remarks that have just been made. May I start by thanking Mrs Palacio Vallelersundi for the broad support that she has given the decision by the Commission to promote the Community patent. As far as Mrs Kauppi is concerned, may I say that the reason that the European Patent Office in Munich uses not just one but a number of experts is that it wants to ensure that the quality of the patent which is granted by the European Patent Office is of the highest quality. Without wishing to be unduly eurocentric, patents granted in other parts of the world, in particular one part which is across the water, if I may put it that way, are not of the same quality as the patents granted by the European Patent Office in Munich. So in this case I am afraid that we must continue to place security and quality above purely financial considerations. That is the reason why the European Patent Office uses more than one expert. On the first question, the Commission is aware of the concerns that have been raised in France and elsewhere about the directive and in particular about possible inconsistencies between two paragraphs of Article 5 of the directive. The President of France, Mr Jacques Chirac, has written to President Prodi on this question. May I stress that in my opinion there is no contradiction between the first two paragraphs of that article, the wording of which I believe relies heavily on suggestions made by this Parliament. The first paragraph provides that the human body at various stages of its formation and development and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions. This paragraph is clearly in line with the basic principle that discoveries are not patentable. However the second paragraph of Article 5 states that an element isolated from the human body or otherwise produced by means of a technical process, including the sequence or the partial sequence of a gene, may constitute a patentable invention, even if the structure of that element is identical to that of a natural element. Here the invention arises from the isolation of a particular gene from its natural surroundings or by its production by means of a technical process. Of course to be patentable, that invention would still need to satisfy the criteria of novelty, inventiveness and industrial applicability. In respect of this last requirement, industrial applicability, the directive makes it clear that the industrial application of the gene must be specified in the patent application. A note setting out the Commission's position on this issue has been placed on our website. Needless to say the Commission will reply to President Chirac's letter and take a position on the issues he has raised. Our proposal on a Community patent, which is the subject of the discussion this afternoon, does not affect the existing regime, which is governed by the directive of 1998. That directive is due to be implemented by the end of this month and it should also bind the European Patent Office. Thors (ELDR). – (SV) Mr President, Commissioner, it is important that you emphasised the coexistence of the national patents, European patents and Community patents. I still wonder, however, how decentralised the research regime will be with regard to the Community patents. It was expressly mentioned in the reply from Parliament in the Green Paper that you mentioned. I am also pleased that we will achieve legal certainty. I think, however, that it could have been achieved in a different way and without creating a Community patent. One question that is important to deal with here in Parliament, and that will definitely be something that affects the linguistic diversity within the EU, is also whether we will guarantee equality between small and medium-sized enterprises that operate in all parts of our Union. I also think it is important that in all parts of the Union we are able to retain the knowledge that is associated with research patents. MacCormick (Verts/ALE). – When we recently discussed the research White Paper, we all took the view that it was vital to move forward on this topic because it was important not only to do very good research in Europe, but also to optimise the conditions for its industrial exploitation. So on that account I welcome Commissioner Bolkenstein's statement. The word 'centralisation' is unfortunate in this context because it suggests a single centre of what is already a polycentric community. I take it his real meaning is that there will be one court for the whole Community, not that it will necessarily be in a place which will be geographically central. Finally, I gather that it is proposed that software might be patented. My Group would be very unhappy about such a proposal. It seems to us that copyright is the right way to protect software and that introducing patents in this sphere would be unhelpful and contrary to good legal principle. Purvis (PPE-DE). – We welcome the fact that this is going to be a great spur to innovation and development and the competitiveness of European industry in the future if it does get through the IGC and onto the statute book. Following up Mrs Fraisse's question and your response to that, the borderline must be established as to what is acceptable for patenting and what is not. In the biotechnology area there is still this grey area. You purported to have reached an absolute decision on this. Is there any room for manoeuvre or is that the absolutely determined and settled position of the Commission as you said in your earlier answer? Bolkestein, Commission. – May I explain that the Commission's proposal, if accepted by Parliament and by the Council, does not take away any possibilities that at present exist. So if the Commission's proposal is accepted there will be three ways of getting patents. First of all there will be the national patents which will be delivered in the national language and will be granted by the national office for the granting of patents. That exists now and will continue to exist. The second possibility that will continue to exist is the European patent granted by the European Patent Office. The European patent is not to be confused with the Community patent. The European patent is a basket of national patents, so an inventor would apply for a patent, for example, for Benelux, France and Germany, five countries out of 15. If the application is approved he would get a patent for those five countries, and jurisdiction would be spread over the courts of those five countries. That possibility – that is the reality at the moment – will continue to exist. The third possibility we are now discussing is one patent of unitary character, in other words it is granted and then it applies to the whole Community. That is why it is called the Community patent. May I stress that this is an option inventors have, they can go either for a national patent or for a European patent or for a Community patent. The Commission does not intend to take away any possibilities that exist at present. Let me address Mrs Thors who asked about decentralisation in this field. We cannot have it both ways. We cannot have our cake and eat it. In other words, if we want a Community patent, granted at a single place, namely Munich, which at one go applies to the whole Community, we must have a central jurisdiction to judge litigation for patents. That is why the Commission has proposed that a tribunal to judge litigation in the case of intellectual property be set up, and the logical place for that tribunal to exist is in Luxembourg. That is also what I would like to say to Mr MacCormick. We are not concerned here with any geographical centrality – although I must admit I do not know whether Luxembourg is or is not in the centre of the European Union. Certainly with the enlargement of the European Union the geographic centre of the Union would shift eastwards. We have chosen the place where the European Court of Justice is located for the Community's tribunal on intellectual property. May I come back to Mrs Thors and say that as far as small and medium-sized enterprises are concerned, the Commission proposal does not take away any possibilities for small and medium-sized enterprises to partake of inventions published by the European Patent Office. 75% of patents are delivered in English, and the current language in the world of intellectual property, in the world of patents, is English. Secondly there are national patent offices. Let them use their capacity to enlighten small and medium enterprises about what is going on in Munich and what has been published in English, French or German. In that way they can stimulate and help the small and medium enterprises existing in those respective countries. Lastly, on the matter of patents for biotechnological inventions, which was raised both in the previous round of questions and just now again, may I stress that the decision taken by the Commission this morning does not change anything in the area that was alluded to by both speakers. The question then arises: does the Commission have room for manoeuvre in this respect? Only those people who have no ideas never change their ideas, so it would be bizarre if the Commission had no room for manoeuvre. We are considering that, we have received the letter from the President of the French Republic, we shall answer that letter obviously, there is already a note which is available on our website and we shall do our best to steer a course which is the most sensible one. Rübig (PPE-DE). – (DE) Mr President, I would like to follow up Mrs Kauppi’s question, in relation to the strategy on the level of invention. A high level of invention has the advantage that it is easy to defend in court, because revocation proceedings are of course a huge problem. A low level of invention has the advantage that many companies and inventors can submit their inventions and obtain a patent very quickly. That is why I believe that the strategic level Europe is to adopt is a vital issue, because the Japanese, for instance, have now adopted the principle of a low level of invention and accordingly have a flood of applications. Europe and the European Patent Office in fact have a very high level of inventiveness. I believe that this is enormously significant as an instrument of economic policy. IN THE CHAIR: MR PUERTA Vice-President Wuermeling (PPE-DE). – (DE) Mr President, Commissioner, I too would like to congratulate you on presenting this proposal. Indeed we all hope that in the interests of the competitiveness of the European Union, this unending Community patent saga will now have a happy ending. That is why it was right – and I would like to specifically support you here – not to overburden this proposal with sensitive issues such as patent protection for biotechnology products. I also entreat my fellow Members not to raise issues of principle on language matters. This is a special field subject to special arrangements. Commissioner, with regard to jurisdiction, you just mentioned in passing that the relevant jurisdiction would of course be in Luxembourg. I hope that was not a reference to a possible location for the European Patent Court. It would possibly make more sense for it to be located in Munich together with the European Patent Office, because all the necessary expertise is available there, which would facilitate cooperation. De Clercq (ELDR). – (NL) Mr President, I would like to congratulate Commissioner Bolkestein warmly on the initiative he has shown, the energy he has displayed and the success he has achieved in respect of the European Community patent. I would like to ask him four questions. As I understand it, some Commissioners, as well as people other than Commissioners, have problems with the proposed language system. I am not fanatical about languages, but I do wonder why there should be three languages and not five, as is the case in the Community Trademark Office. Would this cause a real problem? Secondly, the decision to convert the office in Munich into an EU agency has to be approved unanimously by fifteen governments. Is that a problem? Thirdly, on the position of the European Parliament, we do not really have much of a say. Does this mean that the European Parliament, which has worked harder than anyone else to achieve a European Community patent, will not be involved, or at least be updated in good time and on a regular basis? Finally, what is the latest on the future expansion of the Community patent? Bolkestein, Commission. – Six questions have been put by three Members of your assembly. Perhaps I may deal with them one by one. Firstly, on the matter of thresholds, the only threshold I am aware of is a threshold of quality and we must continue to provide patents which satisfy definite criteria of quality. Earlier this afternoon I replied to a question by Mrs Kauppi where she asked why the European Patent Office did not satisfy itself with just one expert and the reason I gave is that we need the highest quality patents and therefore it is sometimes necessary to use more than one expert. I do not think we should adulterate the quality of the patents delivered by the European Patent Office and therefore we should maintain the threshold as it is. The same Member of Parliament asked about jurisdiction. Once again, a Community patent needs a Community jurisdiction and it seems to us that this court which will consist of specialised judges but which of course forms part of the whole court system of the European Union would be best placed in Luxembourg, but that is purely a matter of the location of the court. On competitiveness, may I say that is one of the prime considerations why we engaged in this whole exercise. Business and the research community want a single patent available at one go for the whole Community and one that is cheap. The average cost of European patents is three times the cost of an average Japanese patent and five times the cost of an average American patent. Obviously this is to the detriment of European competitiveness. As far as the languages are concerned, and here I come to a question put by Mr De Clercq, if we followed the Luxembourg Convention of 1989, which meant that all patents had to be translated into 11 languages, the cost of that translation alone would be EUR 17,000 on average, whereas the system the Commission is now proposing will cost EUR 2,000. That is also the reason why the Luxembourg convention was never operative. It was concluded but it was not ratified in the Member States required and therefore it never became operative and that is because we were not ambitious enough either in the jurisdiction or in the costs. Mr De Clercq says why can we not have five languages. The reason is that the construction of the Community patent is such that the European Patent Office grants a patent for the whole Community and therefore we will leave the whole process up to the granting of the patent as it is now. After that it becomes valid throughout the Community and then there is a court to sit on litigation, but up to the granting of the patent itself the European Patent Office will continue to work as it does now. May I point out that the European Patent Office is not a Community agency. There is a European Patent Convention and 15 Member States have signed the Convention but a number of other states have also signed it so the Commission cannot tell the European Patent Office what its language arrangements should be. Therefore when Mr De Clercq says why could the European Patent Office not become an agency of the European Union my answer is that the European Union must sign up to the European Patent Convention and should negotiate that but it is no longer realistic to expect the European Patent Office to become a Union agency. The penultimate point, raised by Mr De Clercq, was about the codecision procedure. That will remain as it normally is and therefore Parliament will play its normal role in considering the mandates and the aims of the Commission when these issues are decided in full this autumn. Lastly, when enlargement takes place the Union will become bigger, obviously, and the Community patent will then apply to the countries that have acceded to the European Union. There is no other way of keeping and maintaining a Community patent. Once again, the two other possibilities will continue to exist, so there will continue to be a Polish National Patent and there will also continue to be a European Patent which may if the applicant wishes, include Poland. Let us hope that most European businesses and most European research experts will promote the shift from the European Patent to the Community Patent so that the competitiveness of the European Union is improved as much as possible. President. – Thank you very much for your replies, Mr Bolkestein. That concludes the Commission’s statement and the subsequent debate. Last updated: 6 August 2004Legal notice