The EU Patent: Cui Bono et Quo Vadit?

Abstract

The debate over the creation of an EU patent right spans several fruitless decades. Recently, however, the row over proposals (the so-called European Patent Litigation Agreement: EPLA) for an enhancement of the institutional system for Munich patents (European patents) through a specialized court for litigation has re-envigorated those discussions and led to a focus on the design of the institutional and enforcement set-up for the future EU patent. In December 2009, eventually, an initial and limited agreement over the creation of an EU patent and a flanking court was reached among Member States in the Council. That initial agreement signals just the start of the lengthy legislative process under the co-decision procedure, the outcome of which is all but certain. Furthermore, it does not extend to some important details of the system, prominently the language regime, fees and the rules of procedure for the patent court. Still, the agreement is celebrated as a “political breakthrough” by the Commission and among the patent community. Is this kind of euphoria justified? After a brief look at the current situation with regard to patents in the EU, and how we arrived here, the article analyses the possible advantages of an EU patent. Then, on the basis of the reasons behind the prolonged stalemate in this area, the article explores the project’s chances of success following the recent agreement, highlights necessary changes and tries to display what the patent system’s eventual shape at the end of the legislative process might, or should, be