Community Patent Regulation:The Curtain has been Lifted

On 1 August 2000 the Commission presented the proposal for a Council Regulation on the Community patent. The long-awaited draft, which followed the Green Paper of 1997, defines the legal environment for the Community Patent, which shall present an alternative and/or supplement to the current European Patent System.

According to the present draft, the Community patent will be granted by the European Patent Office (EPO) under the rules of the EPC (including opposition and (in future) limitation proceedings). The Community Patent has a unitary and autonomous character.

The Community Intellectual Property Court

Nullity and Infringement shall be dealt with by a newly to be created Community Intellectual Property Court (CIPC). This court has to be established upon amendment of the EC treaty currently under discussion in the Intergovernmental Conference on Institutional Reform. This amendment shall allow the establishment of specialised and centralised courts, which have exclusive jurisdiction for the entire Community territory in this special field – for example with respect to nullity and infringement of Community patents.

The CIPC shall have its own rules of procedure, grant provisional measures, determine penalties and award damages. Apart from nullity and infringement, the CIPC shall also have exclusive jurisdiction for actions for a declaration of non-infringement, limitation (here is a conflict between the present draft and the planned EPC revision, which enables the EPO for such limitations) or for proceedings to the right of prior use of a Community patent. The Community patent may, however, not be subject of actions in respect of threatened infringement.

All other disputes, such as the right to the patent, the transfer of the patent, contractual licenses or general unfair competition matters (involving Community patents), are to be dealt with by the national courts.

The Translation Requirements

According to the present draft, a Community patent will be valid without any further translation. A translation could only become necessary in legal proceedings against a suspected infringer, because the suspected infringer is presumed not to have knowingly infringed the patent if he has been unable to consult the text of the patent in the official language of his domicile member state. This, however, is only important with respect to damages.

Provisional protection (with a claim to reasonable compensation) is only possible if the applicant has either communicated a translation of the claims to the person using the invention in the official language of the person's member state or filed such a translation with the EPO.

Other Stipulations

The Community patent shall be exclusive, i.e. double protection by a Community patent and a national patent (or a European patent) is not possible. Furthermore, even double protection by Community patent and national utility model is excluded.

The Commission will be responsible for granting compulsory licenses and shall be entitled to file nullity proceedings before the CIPC where "necessary in the Community's interest". Appeals against decisions taken by the Commission are heard by the European Court of Justice (Court of First Instance).