Australian exporters regard Europe as one of the most important
and lucrative markets in the world. However, many patent applicants
– both local and foreign – have criticised the
cost and complexity of gaining patent protection throughout Europe.
Whereas the present system of granting and enforcing a patent
throughout the respective member states of the European Patent
Convention was supposed to circumvent such problems, many find that
it only gives rise to a further layer of complexity, confusion and
Those having experienced such impediments will be heartened to
know that moves are afoot to more completely harmonise what we now
understand by the term "European Patent".
The basic notion behind a "Community-type" patent is
that its grant affords the patentee a unitary right throughout all
countries party to any such Convention. This of course means a lone
application filed in the appropriate Receiving Office, a single
examination conducted against unified patentability criteria, the
grant of a single patent having equivalent effect throughout all
member states – and a centralised opposition/revocation
procedure whereby jurisdiction is afforded to one authority having
effect throughout all countries party to the Convention. In short,
the patent systems of the respective contracting states would be
combined into one. Presently in the world, there is no such system
as it pertains to patents, although, for example, there is a
European Community Trade Mark regime operating under essentially
the same premise.
In theory, any such "Community Patent Convention
(CPC) is an attractive proposition. In reality,
however, any such notion has been undermined historically by the
need to find common ground – and with it, the
time-honoured sticking points of negotiation and compromise
– in short, politics.
The European CPC (not to be confused with patents presently
granted under the European Patent Convention) has been debated
since the early 1970s. Whereas a bundle of nationally-enforceable
patents (e.g., a "European patent" as we know it
today) can be expensive for both the patentee in seeking
enforcement – and a third party seeking revocation in a
number of territories, a Community patent in theory circumvents
both these problems. It would provide a patent right that is
consistent throughout Europe – in turn, fulfilling the
principle of even market conditions within the internal market.
The "original" iteration of the European CPC was
actually "signed" at Luxembourg in 1975 by the nine
member states of the European Economic Community
(EEC) at the time. However, it was not ratified by
a sufficient number of these countries and consequently never
entered into force. Attempts to revive it in 1989 met with a
similar fate. Notwithstanding the initial failure of the European
CPC, several member states nonetheless introduced some measure of
harmonisation into their national patent laws in anticipation of it
being eventually ratified. To all intents and purposes, such
harmonising measures resulted in "European patent law" as
we know it today.
However, the theoretical desirability of the Community patent
meant that the issue would soon resurface – and in early
2006 the European Commission initiated public consultation the
future of the Community patent. Although there remained widespread
support for the notion, the results showed that there was no
general consensus as to how best to proceed. The Commission then
released a "white paper" in April 2007, seeking to
"improve the patent system in Europe and revitalise the
debate" on the Community patent.
As a licensor or a licensee, here are some tips you should consider when negotiating your next licence agreement.
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