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04/12/2009

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Correction:
The Paris Convention may not have to be amended for the EU patent to be established: rather, a special agreement could be made, under Art. 19 Paris Convention:
"It is understood that the countries of the [Paris] Union reserve the right to make separately between themselves special agreements for the protection of industrial property, in so far as these agreements do not contravene the provisions of this Convention."

See also Art. 4A(2):
"Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union OR UNDER bilateral or MULTILATERAL TREATIES concluded between countries of the Union shall be recognized as giving rise to the right of priority."

... and the Paris Convention

By the same token, not only the EPC and the PCT have to be amended, so as to enable the EU to accede, but also the Paris Convention for the Protection of Industrial Property.

This announcement from the Swedish presidency is pure propaganda.
First, this "breakthrough" is nothing but an agreement on the establishment of roadblocks: there will be no EU Patent unless:
- unanimous agreement has been reached on a separate regulation on the language regime for the EU patent (as languages are sensitive, it may take a very long time before unanimous agreement has been reached on something that makes sense);
- the EPC has been amended so as to enable the EU to accede to the EPC and to designate the EU in an EP application (this EPC amendment requires 36 ratifications);
- the EU has acceded to the amended EPC; and
- the EEUPC agreement has entered into force for all EU states (as this involves a transfer of national competencies to the EU, in some countries a referendum or a 5/6th majority in parliament will be necessary).
In the above overview, not yet mentioned are that the EU patent regulation is said to have EEA relevance, so that the EEUPC agreement must also be acceded to by the 3 EEA states that are not EU states.
Also, as about 75% of all EP applications are PCT applications, not only the EPC has to be amended so as to allow the EU as such to be designated in an EP application, but also the PCT; the latter requires no less than 142 ratifications.

Secondly, as no agreement has been reached yet on the language regime for the EU patent, it is not at all possible yet to claim that "It will be cheaper and easier for inventors and companies to protect their innovations in the EU."

Thirdly, as the EEUPC court will work with close to 30 different possible procedural languages, while the aim is that all costs are paid from court fees, the above claim that things will become cheaper may also prove to be false for patent litigants, noting that after the transitional period it will no longer be possible to use national courts.

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