09 November 2010

New Proposal for EU Patent Language Regime by Belgian Presidency to be Discussed Tomorrow (updated)

Only recently I reported that, due to predominant national interests, the October meeting of the Competitiveness Council did not bring any improvement to the deadlock between the trilingiual language regime as proposed by the EU Commission on 1 July 2010, and alternative solutions, such as the multilingual language system supported by Spain and Italy (see provisional conclusion of the Council).

Particulary, the latest compromise (non-paper) proposed by the Belgian EU Presidency was "not considered sufficient to remove the deadlock" by the parties, whereas the Belgian Presidency was reported to not loosing hopes that the Competitive Council can still find a fair compromise in this November.

In this situation, it was reported today that the well-informed EurActiv network has seen a new compromise text proposed by the Belgian Presidency, which is hoped to have the potential to break the deadlock and lead to a historic deal at an extraordinary Competitiveness Council on 10 November 2010 (tomorrow).

The key element of the new proposal appears to be an open-ended transitional period during which translations of EU patents should be available only in English, but not in French or German, whereas the permanten regime, upon which English, French and German will become the three fully-fledged official languages for the EU patent, will enter into force only after the transitional period has ended.

Apparently, the Beligian Presidency tries to convince especially Spain and Italy but also Poland and Portugal opposing the three-language system on the table, by vagueness as to the duration of the transitional period and by a so-called "review clause" ensuring another debate on the language regime before the permanent regime will enter into force after the transitional period ended. 

As to the prospect of such a compromise, EurActiv already tapped some diplomatic sources speculating that the proposed transitional period "could be up to 15 years", that "a review clause could possibly be part of a final compromise" and that "Poland and Italy support the idea of a review clause [while] Spain is maintaining a tough stance". No information is currently available on the attitude of France and Germany towards this new move.
Should the "historic deal" not be settled tomorrow, the ministers of the Competitive Council have further chances to reach an agreement at meetings on 26 November and 10 December.

The new Belgian proposal appears to be a good example for the face-saving and unnecessarily complicating compromises driven by national interests and powering the European Union. Such iterative proposals may well lead to the minimal consent of the EU member states but will certainly not lead to the optimal result as originally defined by the European Union. By the way, it apparently was also suggested that "the alleged infringer, before having been provided with a translation in his own language, may have acted in good faith and may have had no reason to know that he was infringing the patent" in order to help "SMEs which lack the financial resources of multinational companies . For further details, please refer to the EurActiv posting.

Update (10 Nov 2010): The European Commission just announced in a related press release that
"An extraordinary session of the EU's Competitiveness Council will meet in Brussels on Wednesday 11 November under the chairmanship of the Belgian Presidency: Mr Vincent Van Quickenborne (Minister for Enterprise and Streamlining Policy). The European Commission will be represented by Commissioner Michel Barnier responsible for the Internal Market and Services",
whereas "the Commission hopes to see Member States move towards a unanimous agreement on Wednesday". Since there is no Wednesday 11 November, it is safe to assume that Wednesday 10 November (today) is actually meant. 

Meanwhile, my colleague Axel Horns of the IPJur has digged out Document 15395/10 dated November 08, 2010, confirming those reports. It is authored by the present Belgian EU Presidency and titled Proposal for a Council Regulation on the translation arrangements for the European Union patent - Political orientation. According to this Document 15395/10, a Second set of elements for compromise to be proposed to the Council on 10 November 2010 includes the following issues:
5. Supplementary translation arrangements: For EU patents granted in English a translation into one other EU official language, at the choice of the patent holder, would have to be provided. This translation would be included in the publication of the EU patent specification by the EPO to give this translation the appropriate visibility. The translation would be for information purposes only. This additional translation into another EU official language of EU patents granted in English would be required as long as high quality machine translations are not available from all three EPO languages into all other EU languages. [...]

6. Compensation of costs for the additional translation: Applicants who have filed their application in a language which is not one of the procedural languages of the EPO can re-utilize their application to provide the translation of their patent into the second language as prescribed in point 5. Since they receive a compensation for the translation of the application into one of the procedural languages of the EPO, they would thus be able to provide the translation of the patent at minimal costs. They would only need to adapt the original application to the final version of the text in which the patent is granted. A Recital could be added to clarify this further.

7. Legal certainty and protection of bona fide third parties: Some delegations have expressed a concern regarding the protection of their companies, in particular SME’s who have acted in good faith in the absence of a translation into their own national language. It concerns the interests of third parties, in particular SME’s, when the EU patent is not translated into their own language. They fear that in the absence of such a translation their companies may inadvertently infringe the patent and may be held liable for damages although they have acted in good faith. It is already foreseen in Article 4 of the proposed Regulation on the Translation Arrangements for the EU patent that in case of a legal dispute the patent holder has to provide the alleged infringer at his request with a full translation into his national language. It could be foreseen and clarified in a recital that in case of a legal dispute concerning a claim for damages the competent court could consider that the alleged infringer, before having been provided with a translation in his own language, may have acted in good faith and may had no reason to know that he was infringing the patent. The competent court would assess this depending on the circumstances of the individual case and would for instance take into account whether the alleged infringer is a multinational company or a SME operating only at local level. Such a safeguard clause would not be limited to the transitional period but would be permanent.

8. Translation arrangements for the provisional protection: As a consequence of the application of the existing provisions of the European Patent Convention (Articles 67 and 70) to the provisional protection of patent applications published, Member States will be able to continue to prescribe that provisional protection shall not be effective in their territory until such time as the translation of the claims into their or one of their official languages is provided. A Recital could be added in the text of the Regulation to clarify this issue.

9. Absence of any precedent for EU instruments dealing with language and translation issues: As a consequence of the single procedure for EU patents and other European patents until grant foreseen in point 2, the normal rules of procedure of the EPC, including the procedural languages, would apply until grant of the EU patent. The Regulation on the translation arrangements for the EU patent would come into play only after grant. Consequently, the limited language regime which follows from the application of the EPC but which is not enshrined in the EU Regulation can not be considered as creating a precedent for a limited language regime in any future EU legal instrument. To make this clear, a Recital could be added in the text of the Regulation.

(Image: the Koolhaas flag, consisting of the colors of the flags of the then 15 member-states of the European Union set side-by-side in a "bar-code" type manner. Offered as a conceptual alternative to the European union flag, but never actually proposed to replace the current 12 stars on blue. Source: Wikimedia)