The debate over a system where inventors can obtain a single patent enforceable across all of Europe has been going on for decades, with little to show in terms of tangible reform. However, a deal may be closer than we once thought: EU's Internal Market Commissioner, Michel Barnier, recently stated that he hoped that a final agreement for a single European patent system would be reached "in days." Barnier emphasized the importance of a new system that would drastically reduce patent costs while at the same time providing "immediate protection for industrial inventions for the whole of Europe." Reducing costs and providing consistent protection and enforcement options for patent owners throughout the region are a fundamental emphasis for supporters of the new system.
The cost savings resulting from a centralized patent system may seem obvious, but it's an incredibly important selling point behind this whole deal. It's estimated that having a single patent covering all of Europe would reduce the cost of obtaining a patent by nearly 80 percent — meaning patent costs could come in around 4,000 euros ($5,000 USD), rather than 20,000 euros ($26,000 USD). Presently, a separate "validation fee" must be paid in each European country where the inventor wants to make a patent enforceable. Add on the cost of translations and other administrative requirements and you've turned the option of intellectual property protection into a luxury most individuals and businesses can't readily afford. Of course, a reduction in the costs for patent applicants would correspondingly reduce the revenue generated by countries under the current system. That's not an easy pill for most countries to swallow, but it doesn't seem that's the only issue that has kept this proposal on the back burner for so many years.
The decision makers
The rules of patent enforcement under the new system appear to be a substantial sticking point as well. Namely, which member country will host the court that will oversee all of the patent infringement cases that originate from these EU-wide patents? That's a touchy subject — it's a matter of intellectual and national pride. Countries like Britain, Germany and France want control over the court that will decide these cases. And while the centralized patent court is a controversial topic, it's also likely to be one of the most meaningful aspects of the system — there's a need to reduce inconsistent patent rulings. Currently, courts in different European countries, looking at essentially the same patent, can come up with completely different decisions after applying the unique laws of that country. Inconsistency at that level naturally creates uncertainty for both patent owners and competitors in the region.
Some of the biggest tech stories over the last year were born from the escalating, world-wide patent battles between Apple and Samsung, so let's use that as the framework for looking at what EU-wide patent enforcement might look like. Under the current system, both Apple and Samsung have asserted the very same patents in multiple European countries, including Germany, France, Britain, Italy and the Netherlands. It's inevitable that a ruling from one of these countries is going to be meaningfully inconsistent with, or even contradictory to that of another country, even though many of them are essentially looking at the same patents, infringement allegations and defenses. Under the proposed EU-wide patent enforcement model, a win would be a win and a loss would be a loss, across all of Europe. A win by Apple at a central patent court in Germany would extend to France. A win by Samsung at a central patent court in Britain would extend to Luxembourg. You get the point: consistency and predictability.
It's still unknown exactly how close this unified patent system is to becoming a reality. It's been rumored that the full EU Parliament may address the matter further during its plenary session in February. However, after nearly 30 years of debate and compromise, we probably shouldn't expect anything to spring to life over the next couple of days.