The 40-year wait for a single European patent may soon be over. A pan-EU or single European patent should benefit inventors, but probably not as much as its advocates claim. As with everything related to (a) patents and (b) the EU, nothing is straightforward. And the elephant in the room remains not the cost of getting a patent, but the cost of enforcing it.
For anyone new to invention, the current European patent system enables you to make one application that is centrally examined, but then requires you to ‘validate’ your patent – in effect, get a separate patent – in each EU state where you want protection. That’s a lot of official fees, translation fees, and general hassle, and it makes EU patent cover disproportionately expensive compared to the cost of a US patent. (Which is why few US inventors bother patenting in Europe.)
In theory, a single European patent published in no more than three languages (English, French and German) and covering 25 of the 27 EU member states will make the patent process cheaper and more efficient, and remove what has been called a major barrier to European innovation.
In practice, many inventors and small companies may lose out. For example, if you only want a patent in the UK and France, because those are your main markets, a pan-European patent may cost you a lot more for unnecessary protection in 23 lesser markets.
Acid test for inventors is enforcement cost
And so far, Spain and Italy have refused to sign up to the single European patent. They’re sulking because Spanish and Italian are not publication languages. So if you want a patent in Europe including both Spain and Italy, that’s three patents you’ll need.
In truth, no one knows how a single European patent will work out. The acid test for inventors and SMEs will be the cost of enforcement.
At present, if you’re an inventor and your patent is infringed, you have to go to court in each country where infringement has taken place. That can land you with enormous legal and translation costs, and there is a notorious lack of consistency in decisions made about the same patent by different jurisdictions.
With the single European patent there will be a single court. But in a typical EU compromise, it will sit in three places – Paris, London and Munich. So not quite a single court.
And while official fees may come down, the figures quoted don’t include translation costs, which will still be significant, and patent attorney and other legal costs, which will also remain significant.
In short, if you’re an inventor or SME and need to enforce or defend your patent, the likelihood is that your total costs will remain scarily high, and that the single European patent will only shave a relatively small percentage off your bill.