The EUROPEAN PATENT SYSTEM AND ITS FUTURE PROSPECT Arūnas Želvys, Lithuanian Patent Office

Summary European patent system Problems of the system Possibile solutions

STATUS QUO

Several Layers of Protection European patents National patents (granted on national and PCT applications) In some countries – “small” patents, or utility models

European Patents European Patent Convention 38 Member States Unitary patent grant procedure and opposition Non unitary: Validation (translations) Enforcement (jurisdictions)

European Patent Validation Validating European patent means translating patent and paying the state fee Validation in EPC states is different: London Agreement has reduced translations costs. However, London Agreement is not valid in 22 EPC states now. Majority of them require translations both of description and claims For rest of the EPC states only translation of claims is enough or no translations at all

Costs of Translations Validation costs can amount to 40% of the overall costs of patenting in Europe A European patent validated in 13 countries costs as much as 20 000 EUR, of which nearly 14 000 EUR arises from translations alone. European patent more than 10 times more expensive than a US patent costing about 1 850 EUR 85 EUR per translated page (average). Typical length 20 pages. Official fees vary from 25 to 400 EUR.

European Patent Enforcement Enforcement is different: Legal dispute means dispute only in that country Who can afford to litigate in 38 EPC member states? Speed of the case is particularly different Assessment of evidence and other rules of proceedings are different The decisions may also be different!

Costs of Enforcement Between 146 and 311 infringement cases are being duplicated in the Member States. By 2013, this number is likely to increase to between 202 and 431 cases. Total private savings from having access to a unified Patent Court in 2013 would span the interval between EUR 148 and 289 million.

Costs of the Enforcement Multiple litigation in UK, NE, DE, FR costs vary from €310,000 before up to €3.6 million when accounting for the cost of appeal at second instance.

National Patents Every European state has its own patent system. Substantial principles of patent systems are almost the same. Some states have substantial patent expertize, some preliminary expertize Only some aspecs are unitary within the EU: botech patents, supplementary protection certificates for medicinal and plant protection products, rules on enforcement (not the enforcement institutions) In principle, non unitary: Procedure up to grant Enforcement

National Utility Models “Small patents” with softer patentabilty criteria Only some states have utility models systems But all of them have their patent systems

No Unitary Patent Europe has no unitary patent at all This is NOT OK for businesses....

System is Fragmented In other words, system is fragmented Fragmentation is expensive Not only for bussinesses, but for states as well ...and creates legal uncertainty

Directions to Go Doing nothing is not the best option Europe has pleny of competitors in the world that are doing their bussiness much and much better

SOLUTIONS TO BE MADE

Something Unitary is Necessary Unitary patent system for Europe? Unitary procedure up to grant – already exists Unitary validation - none Unitary enforcement - none EU patent and unified litigation system - sounds good, but very hard to archieve Initiative burns and rebornes periodically

EU patent A patent which covers all the EU – 27 member states. Similar to Community trademarks of Community designs The same European patent, which is extended to the teritory of the EU In principle, should be unitary in granting procedure, validation and enforcement stages

Unitary litigation system One litigation system for EU and European patents First Instance, Appeal Instance Court and Registry First Instance Court – central, local and regional divisions Significant only if it is enacted altogether with EU patent

Unitary patent There is no consent on the EU patent mainly because of different opinions on patent translations. Why? Are there any reasonable solutions? Unitary litigation system – complex, but plausible.

Benefits for Businesses of Turkey In case unitary patent system revives... EU territory may be covered by unitary EU patent European patent may still be validated in any EPC country Unitary litigation system for both EU and European patents Global competitiveness is increased

Thank you! Arūnas Želvys Head of Law and International Affairs Division Arunas.Zelvys@vpb.gov.lt The State Patent Bureau of the Republic of Lithuania www.vpb.gov.lt Ankara, Turkey 2011-01-26