Editing Unitary patent (section)

==Earlier attempts==

===1970s and 1980s: proposed Community Patent Convention===
Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure.

The "[[Luxembourg]] Conference on the Community Patent" took place in 1975 and the '''Convention for the European Patent for the common market''', or (Luxembourg) Community Patent Convention (CPC), was signed at Luxembourg on 15 December 1975, by the 9 member states of the [[European Economic Community]] at that time.<ref>{{CELEX|41975A3490|text=Convention for the European patent for the common market}}</ref> However, the CPC never entered into force. It was not ratified by enough countries.<ref>{{cite book|url=https://books.google.com/books?id=Wkq9BgAAQBAJ&pg=PA33|title=The Unitary EU Patent System|year=2015|first1=Justine|last1=Pila|first2=Christopher|last2=Wadlow|publisher=[[Bloomsbury Publishing]]|pages=33–35|isbn=9781782255062}}</ref>

Fourteen years later, the '''Agreement relating to Community patents''' was made at Luxembourg on 15 December 1989.<ref>{{CELEX|41989A0695(01)|text=Agreement relating to Community patents}}</ref> It attempted to revive the CPC project, but also failed. This Agreement consisted of an amended version of the original Community Patent Convention. Twelve states signed the Agreement: [[Belgium]], [[Denmark]], France, Germany, [[Greece]], [[Republic of Ireland|Ireland]], Italy, [[Luxembourg]], the [[Netherlands]], [[Portugal]], Spain, and United Kingdom. All of those states would need to have ratified the Agreement to cause it to enter into force,<ref>{{CELEX|41989A0695(01)|text=89/695/EEC: Agreement relating to Community patents - Done at Luxembourg on 15 December 1989}}</ref> but only seven did so: [[Denmark]], France, Germany, [[Greece]], [[Luxembourg]], the [[Netherlands]], and United Kingdom.<ref>{{cite web|url=http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/agreement/?aid=1989104|title=Agreement relating to Community Patents|access-date=2015-06-27|publisher=Council of the European Union}}</ref><ref>[[Official Journal of the European Patent Office]] 4/2006 p. 328 [http://www.european-patent-office.org/epo/pubs/oj006/04_06/04_3086.pdf (pdf)]</ref>

Nevertheless, a majority of member states of the EEC at that time introduced some harmonisation into their national patent laws in anticipation of the entry in force of the CPC. A more substantive harmonisation took place at around the same time to take account of the European Patent Convention and the [[Convention on the Unification of Certain Points of Substantive Law on Patents for Invention|Strasbourg Convention]].

===2000 to 2004: EU Regulation proposal===
In 2000, renewed efforts from the European Union resulted in a Community Patent [[European Union regulation|Regulation]] proposal, sometimes abbreviated as '''CPR'''. It provides that the patent, once it has been granted by the European Patent Office (EPO) in one of its procedural languages (English, German or French) and published in that language, with a translation of the claims into the two other procedural languages, will be valid without any further translation. This proposal is aimed to achieve a considerable reduction in translation costs.

Nevertheless, additional translations could become necessary in legal proceedings against a suspected infringer. In such a situation, a suspected infringer who has been unable to consult the text of the patent in the official language of the Member State in which he is domiciled, is presumed, until proven otherwise, not to have knowingly infringed the patent. To protect a suspected infringer who, in such a situation, has not acted in a deliberate manner, it is provided that the proprietor of the patent will not be able to obtain damages in respect of the period prior to the translation of the patent being notified to the infringer.

The proposed Community Patent Regulation should also establish a court holding exclusive jurisdiction to invalidate issued patents; thus, a Community Patent's validity will be the same in all EU member states. This court will be attached to the present [[European Court of Justice]] and [[Court of First Instance]] through use of provisions in the [[Treaty of Nice]].

Discussion regarding the Community patent had made clear progress in 2003 when a political agreement was reached on 3 March 2003. However, one year later in March 2004 under the Irish [[Presidency of the Council of the European Union|presidency]], the [[Council of the European Union#Configurations|Competitiveness Council]] failed to agree on the details of the Regulation. In particular the time delays for translating the claims and the authentic text of the claims in case of an infringement remained problematic issues throughout discussions and in the end proved insoluble.

In view of the difficulties in reaching an agreement on the community patent,<ref>Axel H. Horns, [http://www.ipjur.com/blog2/index.php?/archives/138-A-Unified-European-Patent-System-The-Historical-Perspective.html#extended A Unified European Patent System – The Historical Perspective] {{Webarchive|url=https://web.archive.org/web/20120415050419/http://www.ipjur.com/blog2/index.php?%2Farchives%2F138-A-Unified-European-Patent-System-The-Historical-Perspective.html#extended |date=15 April 2012 }}, IP::JUR blog, 18 February 2010. Consulted on 20 February 2010.</ref> other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and [[lawsuit|litigation]], namely the [[London Agreement (2000)|London Agreement]], which entered into force on 1 May 2008—and which has reduced the number of countries requiring translation of European patents granted nowadays under the European Patent Convention, and the corresponding costs to obtain a European patent<ref>Bruno van Pottelsberghe de la Potterie, Malwina Mejer, [https://doi.org/10.1007%2Fs10657-009-9118-6 "The London Agreement and the cost of patenting in Europe"], [[European Journal of Law and Economics]], Vol. 29, Number 2, April 2010, pp. 211–237.</ref>—and the [[European Patent Litigation Agreement]] (EPLA), a proposal that has now lapsed.

====Reactions to the failure====
[[Image:ProdiBari.jpg|right|thumb|[[Romano Prodi]] (here on a picture taken in 2006) cited the failure to agree on a Europewide patent as a weak point of his five-year term as [[President of the European Commission]].]]
After the council in March 2004, [[European Commission|EU Commissioner]] [[Frits Bolkestein]] said that "The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010." Adding:

{{blockquote|It is a mystery to me how Ministers at the so-called 'Competitiveness Council' can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year. I can only hope that one day the vested, [[protectionism|protectionist]] interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. That day has not yet come.<ref>{{cite web| url = http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/04/58| title = Commission Press Communique, 12 March 2004, "Results of the Competitiveness Council of Ministers, Brussels, 11 March 2004 Internal Market, Enterprise and Consumer Protection issues"}}</ref>}}

Jonathan Todd, Commission's Internal Market spokesman, declared:
{{blockquote|Normally, after the common political approach, the text of the regulation is agreed very quickly. Instead, some Member States appear to have changed their positions. (...) It is extremely unfortunate that European industry's competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests.<ref>{{cite web| url = http://cordis.europa.eu/itt/itt-en/04-3/policy03.htm| title = cordis.europa.eu, ''Patently unclear'', 26 May 2004}}</ref>}}

European Commission President [[Romano Prodi]], asked to evaluate his five-year term, cited as his weak point the failure of many EU governments to implement the "[[Lisbon Agenda]]", agreed in 2001. In particular, he cited the failure to agree on a Europewide patent, or even the languages to be used for such a patent, "because member states did not accept a change in the rules; they were not coherent".<ref>[[The Wall Street Journal]], 25 October 2004</ref>

===Since 2005: stalemate and new debate===
[[Image:Charlie McCreevy portrait.jpg|thumb|left|In 2007, [[Charlie McCreevy]] was quoted as saying that the proposal for an EU-wide patent was stuck in the [[mud]].]]

Thus, in 2005, the Community patent looked unlikely to be implemented in the near future. However, on 16 January 2006 the [[European Commission]] "launched a public consultation on how future action in patent policy to create an EU-wide system of protection can best take account of stakeholders' needs." The Community patent was one of the issues the consultation focused on.<ref>[http://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/38&format=HTML&aged=0&language=EN&guiLanguage=en European Commission, Internal Market, ''Commission asks industry and other stakeholders for their views on future patent policy'', Brussels, 16 January 2006],</ref> More than 2500 replies were received.<ref name="Stakeholders debate"/> According to the European Commission, the consultation showed that there is widespread support for the Community patent but not at any cost, and "in particular not on the basis of the Common Political Approach reached by EU Ministers in 2003".<ref name="Stakeholders debate"/>

In February 2007, [[European Commission|EU Commissioner]] [[Charlie McCreevy]] was quoted as saying:
{{blockquote|The proposal for an EU-wide patent is stuck in the mud. It is clear to me from discussions with member states that there is no consensus at present on how to improve the situation.<ref>Chris Jones, [https://web.archive.org/web/20070204044554/http://www.eupolitix.com/EN/News/200702/7be97fa5-3cb6-403f-aadf-103ad99a9950.htm ''McCreevy backs plans for single EU-US market''], TheParliament.com, 1 February 2007. Consulted on 2 February 2007.</ref> }}

The European Commission released a white paper in April 2007 seeking to "improve the patent system in Europe and revitalise the debate on this issue."<ref>Commission of the European Communities,
[http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/06/786&format=PDF&aged=0&language=EN&guiLanguage=en ''Communication from the European Parliament and the Council – Enhancing the patent system in Europe''], Brussels, COM (2007), 29 March 2007</ref> On 18 April 2007, at the European Patent Forum in [[Munich]], Germany, [[Günter Verheugen]], vice-president of the European Commission, said that his proposal to support the [[European economy]] was "to have the London Agreement ratified by all member states, and to have a European patent judiciary set up, in order to achieve rapid implementation of the Community patent, which is indispensable".<ref name="epo 20.04.07">European Patent Office web site, [http://www.epo.org/focus/news/2007/070420.html ''"An incomplete European patent system puts European businesses at a competitive disadvantage"''] {{Webarchive|url=https://web.archive.org/web/20081120123906/http://www.epo.org/focus/news/2007/070420.html |date=20 November 2008 }}. Consulted on 20 April 2007.</ref> He further said that he believed this could be done within five years.<ref name="epo 20.04.07"/><ref>[[CORDIS]] News, [http://cordis.europa.eu/fetch?CALLER=EN_NEWS&ACTION=D&SESSION=&RCN=27536 ''Forum on the future of IP vows to push ahead with Community Patent''] {{Webarchive|url=https://web.archive.org/web/20130524072808/http://cordis.europa.eu/fetch?CALLER=EN_NEWS&ACTION=D&SESSION=&RCN=27536 |date=24 May 2013 }}, 20 April 2007</ref>

In October 2007, the Portuguese [[presidency of the Council of the European Union]] proposed an EU patent jurisdiction, "borrowing heavily from the rejected draft European Patent Litigation Agreement (EPLA)".<ref>Huw Jones, [https://www.reuters.com/article/governmentFilingsNews/idUSL1128205820071011 ''EU president Portugal proposes new patent courts''], Reuters, 11 October 2007.</ref> In November 2007, EU ministers were reported to have made some progress towards a community patent legal system, with "some specific results" expected in 2008.<ref>Huw Jones, [https://www.theguardian.com/feedarticle?id=7097030 ''Ministers make progress along road to EU patent'']{{Dead link|date=September 2009}}, [[The Guardian]], 22 November 2007. Consulted on 24 November 2007.</ref>

In 2008, the idea of using [[machine translation]]s to translate patents was proposed to solve the language issue, which is partially responsible for blocking progress on the community patent.<ref>James Nurton, [http://www.managingip.com/Article/1918807/Translation-breakthrough-for-Community-patent.html ''Translation breakthrough for Community patent''], [[Managing Intellectual Property]], Weekly News, 26 April 2008. Consulted on 7 May 2008.</ref><ref>Council of the European Union, [http://register.consilium.europa.eu/pdf/en/08/st08/st08928.en08.pdf ''Towards a Community patent – Translation arrangements and distribution of fees''], Working Document, 8928/08, 28 April 2008, pp 3–6.</ref> Meanwhile, European Commissioner for Enterprise and Industry [[Günter Verheugen]] declared at the European Patent Forum in May 2008 that there was an "urgent need" for a community patent.<ref>James Nurton, [http://www.managingip.com/Article/1927639/Verheugen-adds-to-Community-patent-momentum.html ''Verheugen adds to Community patent momentum''], Managing Intellectual Property, Weekly News, 6 May 2008. Consulted on 7 May 2008.</ref>

===Agreement in December 2009, and language issue===
In December 2009, it was reported that the Swedish EU presidency had achieved a breakthrough in negotiations concerning the community patent. The breakthrough was reported to involve setting up a single patent court for the EU,<ref>[http://www.ipworld.com/ipwo/doc/view.htm?id=237175&searchCode=H EU patent finally on the horizon] {{Webarchive|url=https://web.archive.org/web/20110713053945/http://www.ipworld.com/ipwo/doc/view.htm?id=237175&searchCode=H |date=13 July 2011 }}, IPWorld, 7 December 2009. Consulted on 6 February 2010.</ref> however ministers conceded much work remained to be done before the community patent would become a reality.<ref>{{cite news| url = http://news.bbc.co.uk/2/hi/europe/8396279.stm| title = EU moves towards common patent system (BBC, 4 December 2009)| date = 4 December 2009}}</ref><ref>{{cite web| url = http://euobserver.com/9/29099| title = EU takes big step towards common patent system (EUObserver, 4 December 2009)| date = 4 December 2009}}</ref>

According to the agreed plan, the EU would accede to the [[European Patent Convention]] as a contracting state, and patents granted by the [[European Patent Office]] will, when validated for the EU, have unitary effect in the territory of the European Union.<ref>EPO web site, [http://www.epo.org/topics/news/2009/20091208.html EU Council agrees on next steps regarding the Community patent (EU patent)] {{Webarchive|url=https://web.archive.org/web/20101227055218/http://www.epo.org/topics/news/2009/20091208.html |date=27 December 2010 }}, News, 8 December 2009. Consulted on 15 January 2010.</ref> On 10 November 2010, it was announced that no agreement had been reached and that, "in spite of the progress made, [the Competitiveness Council of the European Union had] fallen short of unanimity by a small margin,"<ref>Council of the European Union, [http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/117687.pdf Press Release 16041/10, Extraordinary Council meeting, Competitiveness (Internal Market, Industry, Research and Space), Brussels, 10 November 2010]. Consulted on 27 November 2010.</ref> with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination,<ref>[http://www.euractiv.com/en/innovation/italy-and-spain-block-eu-wide-patent-talks-news-499638 "Italy and Spain block EU-wide patent talks"] {{Webarchive|url=https://web.archive.org/web/20101124090351/http://euractiv.com/en/innovation/italy-and-spain-block-eu-wide-patent-talks-news-499638 |date=24 November 2010 }}, Euractiv.com, 11 November 2010. Consulted on 27 November 2010.</ref> had "re-iterated at length the stubborn rejection of the Madrid Government of taking the 'Munich' three languages regime (English, German, French) of the European Patent Convention (EPC) as a basis for a future EU Patent."<ref>[http://www.ipjur.com/blog2/index.php?/archives/184-Spanish-Government-Knocking-Down-Compromise-On-EU-Patent-Languages-Regime.html Spanish Government Knocking Down Compromise On EU Patent Languages Regime] {{Webarchive|url=https://web.archive.org/web/20101202043524/http://www.ipjur.com/blog2/index.php?%2Farchives%2F184-Spanish-Government-Knocking-Down-Compromise-On-EU-Patent-Languages-Regime.html |date=2 December 2010 }}, IPJur blog, 10 November 2010. Consulted on 27 November 2010.</ref>