Academic journal article Santa Clara High Technology Law Journal

The Community Patent, or :"How I Learned to Stop Worriying and Love the English Language"

Academic journal article Santa Clara High Technology Law Journal

The Community Patent, or :"How I Learned to Stop Worriying and Love the English Language"

Article excerpt

I. THE CREATION OF A GENUINE EUROPEAN RIGHT (1)

The question on the minds of inventors for almost thirty years has been how to implement a single European patent that can be defended in a single European court. After nearly three decades of attempts, however, Europe has been left with no Community patent. The European Patent Convention ("EPC") came into effect in 1977 with the hopes of harmonizing Europe's patent system. (2) Briefly, the EPC established a single procedure and office (the European Patent Office or "EPO") for the grant of a European patent. A European patent is like a soap bubble--it is wonderful to look at, but the moment you touch it, it splashes into little pieces. (3) A "European patent" ceases to exist upon grant. It becomes a "bundle" of national patents and is subject to the patent laws and litigation procedures of each member state. Validity is conditioned upon the European patent being translated into the language of each member state where the patent is to have effect. (4) The extremely high translation costs alone can add up to more than the expense of prosecuting the entire patent in either the U.S. or Japan. (5)

A. The Community Patent

While many would consider the EPO a success, there are still those for whom the system is arcane and in need of reform. (6) Large companies--for whom the cost of translation is merely the price of doing business in Europe, one they are more than willing to pay. favor the EPO. The real problem arises for small and medium--sized enterprises ("SMEs"), for which the cost of translation into several languages and the possibility of litigation on more than one frontier is prohibitively expensive. (7)

A solution exists that will be agreeable to applicants of all sizes: the Community patent. The Luxembourg Convention of 1975 (8) sought to establish a system of patents to facilitate the protection of European technological advances by enabling rights to be managed centrally, thereby affording greater transparency for competitors. (9) Whereas the European patent becomes a tangled web of national patents, a Community patent would extricate the applicant from this snare since it would be a genuine European right. The raison d'etre of enacting the EPC, after all, was to "strengthen cooperation between the States in Europe with respect to the protection of their inventions." (10) The Community patent would act much like a U.S. patent, given that it would be a unitary title for the European continent. Unfortunately, the Luxembourg Convention is not ratified, and its future is still uncertain. Despite attempts to create a Community patent and a "deadline" for its implementation, (11) national hubris of the member states has resulted in even more of a rift than in the harmonization originally envisioned.

While the United States may be quick to criticize the lack of a unified Community patent, (12) there are many who feel the progress made in establishing the EPO is itself a great triumph. (13) When compared with the pre-1977 patent system, it is. Nevertheless, when the European system is compared with that of either the United States or Japan, it takes a creative argument to reach the same conclusion. (14) The Community patent, however, would bring Europe's patent system up to speed with the rest of the world. How would the Community patent accomplish this? What are its advantages?

II. CUTTING COSTS BY ELIMINATING TRANSLATIONS. (15)

The idea of a single language of patents is not a new one; it was originally proposed that English be the official language of the EPO. Although Germany seemed to have no quarrel, France was outraged. (16) When France would not accede without the use of French as a co-language, Germany would no longer acquiesce. There are, after all, nearly 100 million German speakers and only 60 million francophones. In the end, the EPO decided upon three official languages. (17)

In practice then, a patentee must file an application in one of the three official languages. …

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