EUROPEAN COMMISSION’S QUESTIONNAIRE ON THE PATENT SYSTEM IN EUROPE

Ministry of Trade and Industry

Ministry of Trade and Industry has requested Federation of Finnish Enterprises for a comment on the European Commission’s questionnaire on the patent system in Europe. With reference to the request we respectably state the following:

It is easy to agree on the basic principles and features of the patent systems laid down on the Commission’s consultation paper. Indeed, the patent system should be transparent, cost effective and accessible while obtaining a patent. Moreover, predictable, rapid and inexpensive resolution of disputes is an intrinsic and imperative element of a functioning patent system.

The patent system, however, should not be perceived as a one body but constituting of two equally important components which are

1) the process of applying and obtaining a patent and

2) defending the patent rights / resolving the disputes.

These elements should be considered separately when determining the best possible patent system.

We would like to point out that the harmonization of material patent law in EU has mainly been done via EPC which lays down a single procedure for the granting of European patents. The patents granted through this system become national patents subject to the national rules. This enables an enterprise to choose the countries in which it seeks the protection for the invention.

In the Commission’s questionnaire on the patent system in Europe the Community patent is seen as a priority for the EU. From the SME’s point of view, however, the Community patent can be seen as one option but it must not be over-emphasized as it is up to the enterprise’s management to decide which system they want to use. That is always a strategic choice and thus other options, such as to be able to file the patent application only for certain strategically important countries nationally or via EPC, must remain available and in ways which are evenly transparent, cost effective and accessible as the proposed Community patent. Therefore, it should also be taken into account what measures could be taken in trying to improve the existing system of applying and granting of patents in Europe before introducing new systems. Moreover, in our view there haven’t been any major problems regarding the existing system that would necessary require any new systems to be introduced.

As mentioned before, the efficient, predictable and inexpensive dispute resolution is the second key element of a well functioning patent system. The basic idea standing behind the patent system is to stimulate innovation. There are millions of innovative small and medium sized companies throughout the EU. For the patent system to reach its main goal it is imperative that also SMEs are efficiently able to defend their patent rights without the fear of excessive expenses. This is, however, not only in the interest of SMEs but it is crucial for the competitiveness of the whole EU. Moreover, the connection to the important principles of fair trial and access-to-justice can be seen here.

Subsequently, unnecessary overlapping of the patent court systems should not be created. Furthermore, it should be thoroughly discussed whether it is absolutely necessary to set up a new court system for patent litigation (EPLA or Community Patent Court). A consistent interpretation of material patent law, however, could be ensured by forming a body (in connection with EPO for example) which would give recommendations to the national courts for trials concerning European patents. The enforcement of the judgments could, when necessary, be ensured by the mutual recognition of the judgments. It can be argued that the litigation system described above would be easily accessible, rapid and cost effective. In addition, it would strengthen the role of EPO as a forerunner of European patent law but at the same time retain the jurisdiction on a national level and close to the parties. Thus, by pieces already existing, it would be possible to create a well functioning patent litigation system for the European Union.

Finally we would like to highlight the fact that it is important to consider the future patent system not from the system’s point of view but the user’s point of view. The patent system is created for its users and it should encourage new innovations and new business concepts. In that respect the strengths of the existing patent system should be recognized and developed further. The weaknesses should be amended. This does not necessary have to mean setting up new, more centralized systems for obtaining patents or resolving disputes but to utilize the existing system more efficiently.

Respectably

The Federation of Finnish Enterprises

Jussi Järventaus
executive director

Janne Makkula
legal advisor