12 October 2010

Belgian Compromise not Sufficient to Remove Deadlock on EU Patent Language Regime (updated)

Refering to an article on the well informed EurActiv network, the meeting of the Competitiveness Council held in Luxembourg on 11 and 12 October 2010 did not bring any improvement to the deadlock between the trilingiual language regime proposed by the EU Commission, as supported by e.g. France and Germany, and alternative solution, such as a monolingual (exclusively based on English) or multilingual (additionally based on Spanish and Italian) language system, as supported e.g. by Spain and Italy. It appears that the latest compromise as suggested by the Belgian EU Presidency has been reamed between this opposing poles and national interests:
France and Germany want to maintain the privileged status reserved for their respective languages in the current system, which is run by the European Patent Office (EPO), a pan-European body which is not part of the EU.

Italy is the most vocal country against a trilingual regime. The minister in charge of the dossier, Andrea Ronchi, continued to threaten yesterday at the EU Council that Rome would not hesitate to use its veto power on the issue. [He] described as "absolutely incompatible" the trilingual regime proposed by the Commission and de facto backed by the Belgian Presidency. "It hampers the internal market. It discriminates against languages and does not reduce costs sufficiently," he said at the end of the Council.

Spain is also very critical and has proposed a system based on English and a second language, to be chosen at will by applicants.

Poland is said to have voiced criticism at the last Council. Warsaw is clearly against the idea that a possible solution could involve a five-language regime, where Italian and Spanish would join English, French and German as official languages for EU patents, leaving out Polish.

Slovakia, the Czech Republic and Cyprus are also sceptical about the three-language proposal made by the Commission last July.
The commissioner in charge of the dossier at the EU executive, Frenchman Michel Barnier, faced accusations that he was pursuing his national interest in proposing a trilingual system during a press conference after the Council had ended yesterday.

The EU commissioner for industry, Italian Antonio Tajani, said he supported a solution based on multilingualism, with five languages rather than three. "However, instead of a monolingual regime, I would go for a trilingual system," he added after the Council.
In this situation the compromise proposed by the Belgian Presidency was "not considered sufficient to remove the deadlock", since it apparenty does not meet any of the above-skeched national interest. 

However, the Belgian Presidency is still confident that the next Competitiveness Council in November can find a fair compromise on the EUpatent, as expressed by the Belgian minister in charge of the dossier, Vincent Van Quickenborne, underlining that a compromise is still possible.

Also refering to the EurActiv piece, Joff Wild of the IAM blog comments on the more (socio and business) cultural aspects of that intense discussion:
Language goes to the very heart of how a country views itself. As we can see from the above, it is not just Spain and Italy that feel strongly about this, but also France, Germany and many other countries. Logically, a system that is based solely on English probably makes the most sense, which is why the Commission originally suggested this all those years ago. But, as it then found out, emotionally, culturally, socially and politically, such a system is impossible in Europe. [...]

Of course, if the EU is ever to be a proper single market it has to have a single patent right. But maybe member states would be better off concluding that absolute purity really is not worth the bother. And were that to happen, they could then give more time to addressing the real reasons why so many European companies do not show any interest in patents. [...] This has much less to do with cost than it has to do with them not seeing the point of obtaining protection. After all, if they did see the point and felt it was important, the price would not be an issue in the first place.
UPDATE: The provisional conclusion of the Competitiveness Counsil has been published today. Therein it is stated that "the outcome of the [...] debate provides guidance and good basis for continuing work with a view to achieving an agreement as soon as possible on this long-standing file", which basically means that a stable compromise was not yet found.

Besides well-known phrases on the drawbacks of the current (EPC-) system and completion
of the internal market for innovative products, the paper summes up the essential parts of the discussions as follows:
  • A very large majority of delegations supports the compromise proposed by the Presidency in document 14377/10, which should serve as basis for further discussions;
  • Several delegations stressed the importance of the accompanying measures being made available by the time the EU patent system becomes operational, namely: a high quality system for machine translations of patent documentation into and from any EU language and the full compensation of the costs related to the translation of a patent application drafted in an EU language other than one of the EPO languages;
  • A large majority of delegations underlined that the red lines for finding a final compromise are that no significant costs should arise from additional translations and that the new system should not result in legal uncertainty.
  • The Presidency has received sufficient encouragement to intensify and accelerate work on this file with a view to reaching a successful outcome before the end of this year.
  • Several member states mentioned the possibility of considering an enhanced cooperation, but the Presidency's ambition remains to find an acceptable compromise for all 27 member states.
  • The Presidency plans to organise another ministerial meeting next November with a view to reaching an agreement."
That is, the enhanced cooperation, which is clearly opposed to the community idea of the European Union, has been discussed as a possible solution to the current deadlock and thus may indeed appear to be the only way a "EU" patent could be realised. We shall wait an see as this saga will certainly be enriched by some more twists.