The Patents Act 1977 is currently the principal statute governing patent law and practice in the UK. At the date of its conception, this Act was intended to provide the UK with a system of patent law in accord with the substantive provisions of the European Patent Convention, and to manage patents and applications processed via the European Patent Office or the Patent Cooperation Treaty as administered by the World Intellectual Property Organisation.
However, one or two facts of UK patent law remain unique, and the English Courts have had and continue to have differing opinions upon the interpretation of certain substantive provisions of the relevant legislation.
The Community Patent
The Community Patent should not be confused with European patents which are granted under the European Patent Convention. European patents, once granted become a bundle of nationally enforceable patents in each of the designated states. This can be expensive for the patentee in that enforcement must be carried out through the national courts in each individual country, and for third parties revocation cannot be accomplished centrally once the nine month opposition period has expired.
Work on a Community Patent was first started in the mid-1970s, but the resulting Community Patent Convention failed as it was never ratified by sufficient countries. In 1989 the Agreement Relating to Community Patents was an attempt to revive the project. But this attempt failed again.
The two most substantive problems have been with the enforcement of the Community Patents once granted, and the issue of the translation of the patents. In December last year a new draft regulation was published, after a break though was made when it was agreed that there would be a single patent court for the EU, as opposed to each territory enforcing a Community patent under their own procedural rules.
The only real issue outstanding is therefore in relation to the language of a Community Patent. The costs of translating patents into the language of each state in which protection is sought is huge, and quite often will simply deter people from seeking protection in as many countries as they might, had it not been for the translation cost. It used to be the case under the European Patent Convention that a patent application must be filed in one of the three official languages, English, French or German, but the claims of any application so filed must be translated into all three of these languages. If then a patentee designates, for example Poland as a country in which protection is sought, the whole patent must be translated into Polish. Although, the London Agreement which came into force on 1 May 2008, has now addressed a number of these translation issues.
It has been suggested that a Community Patent application be filed in one of the three official languages, English, French or German, and again the claims of the application so filed be translated into all three of these languages should be adopted in any Community Patent Regulation, and that no further translation of the patent is required, along the lines of the London Agreement. However, and probably quite rightly the community states which do not speak English, French or German as their first language have an obvious problem with this set up. It has now been proposed that no further translation of a Community Patent will be required unless infringement proceedings are to be brought, in which case a translation of the relevant patent must be served upon the alleged infringer in the language if his home country.
This proposal has not as yet been accepted by all member states, but the support for a Community Patent is strong enough, to ensure that a Community Patent will be created – maybe not this year but certainly soon.
Patents Act 1977
Patent Co-operation Treaty – 1970 (as amended)
European Patent Convention 1973
Draft Council Regulation on the European Union Patent – 4 December 2009
Patent Law Treaty 2000