Momentum has been slowly building toward enhancing the way patents are granted and enforced in Europe. As the global importance of intellectual property increases, businesses and inventors in Europe are in urgent need of a framework for 1) obtaining and validating uniform patent rights and 2) for centralized adjudication that ensures consistent application of legal standards to patents.
Presently, contracting states of the European Patent Office (“EPO”) must each separately validate a patent granted by the EPO, and it is up to the legal system of each contracting state to provide a venue for enforcing and challenging the rights granted. Although there is an EPO mechanism for challenging the validity of a granted patent, this is limited to a nine-month opposition period following the grant date. After that, there simply is no centralized way of challenging a patent granted by the EPO.
Under current European Union (“EU”) law, infringement of patents granted by the EPO is therefore dealt with under the laws of the individual contracting states. Because each country has its own patent laws, the result is an uneven approach from country to country. Patent holders wishing to enforce their rights therefore face the prospect of initiating enormously costly legal proceedings in multiple jurisdictions, each having a different set of patent laws.
Initiatives to centralize adjudication of patents in Europe are nothing new. Since at least 2003, a draft agreement among contracting states, and a draft European Patent Law, have existed in one form or another without ever coming to close to realization. Yet significant progress to centralization of both validation and adjudication may finally be on the horizon. At a recent Lisbon symposium attended by patent judges from around Europe, the US, and Japan, delegates discussed how to solve the many issues to be worked out – different national languages, different judicial systems, different approaches to what patents should cover, tension between EU and national laws, administrative issues with a common patent court, and geopolitical issues being just some of the many. Devoting time to such issues indicates that officials across Europe are committed to finding an approach that enables consistent patent procedures for both validation and adjudication.
Patent applicants across the world are interested in seeing whether Europe can achieve such harmonization. The current approach often causes applicants to limit the European countries in which they pursue protection. Once the EPO grant procedure is finished, it is common for only a select few European countries to be chosen for national validation, due to high costs, time delays, and different legal standards. But a centralized approach would make Europe as a whole much more favorable a destination for those seeking international patent protection for their valuable intellectual property rights.