The European Union Patent: the ship has sailed

Since acceding to the Presidency of the Council of the European Union on 1 July 2010, Belgium has diligently tried to advance the European Union ("EU") patent project.

The EU or Community patent is a patent that is valid throughout the entire European Union without any formalities being required in the individual member states. The EU patent should not be confused with the European patent, which has existed since 1973 and is a patent application filed centrally with the European Patent Office ("EPO") in Munich. Once granted, a European patent is broken down into a bundle of individual national patents which must be validated in each designated country. A European patent is extremely expensive, mainly due to translation costs. For example, a patent designating all 27 EU member states can cost between €24,000 and €32,000.

The high cost of a European patent makes it an inefficient tool to protect innovation, compared to a US patent which costs only around $1,850.

It is widely accepted that intellectual property rights, especially patent rights, are key to the business model of every company, regardless of its size or sector. In order to encourage innovation, the cost of protecting IP rights must go down. This is especially important for SMEs.

In this context, the Belgian Presidency supported an "enhanced patent system in Europe" comprising the creation of an EU patent and an EU patent court, translation arrangements for the EU patent, amendments to the Community Patent Convention (CPC), improved partnerships, and arrangements on EU patent renewal fees.

On 1 July 2010, a proposal on translation arrangements for the future EU patent was issued. It was proposed that patents be examined and granted in one of the EPO's three official languages - English, French or German - and that the granted patent be published in this language, including a translation of the patent's claims into the other two languages. Under this proposal, the "processing costs of an EU Patent covering 27 Member Sates would be less than €6200, of which only 10% would be due to translations". It was also proposed that automatic machine-generated translations into all other EU languages be made available. According to experts, it would take three to four years to get this type of programme off the ground.

On 10 November 2010, the EU's Competitiveness Council of Ministers held an extraordinary meeting in Brussels for the purpose of reaching a compromise agreement on the main stumbling block to achieving an EU patent system: translation arrangements for the EU patent. Despite the efforts made by most national delegations, the Council failed to achieve the required unanimity, since Spain did not agree with the proposal. "All languages have to be treated in the same way. If we abandon our national language, everybody has to do so", stated the Spanish Secretary of State for European Affairs. According to press reports, Italy and Poland supported Spain's position.

At the end of the discussion, the Belgian Presidency stated that no stone had been left unturned and that it would now start to reflect on how to capitalize on the momentum and the inroads made by the delegations.

The Presidency is expected to try to re-enact the scenario that led to the creation of the EPO, namely to move forward with only a happy few. The UK, the Netherlands, Slovenia, Sweden and Ireland have already announced that they are prepared to create an "enhanced cooperation" group to work on the language issues, in the hopes that the efficiencies achieved will convince other countries to join them. According to the Treaty of Lisbon, enhanced cooperation requires the participation of at least nine member states.

It goes without saying that this stalemate is detrimental to the EU, especially in the current economic climate when reducing the cost of protecting IP rights while offering an efficient, unified patent system to stimulate innovation is key to innovative industries.

Viewed from that perspective, the enhanced cooperation plan is nothing more than a consolation prize.