The European Commission proposed, on 1 July, to limit the translation of the future EU patent to three languages - English, French and German (seeEuropolitics 4011) - in order to reduce the cost of registering a patent. Vincent Cassiers, a member of the Brussels bar specialised in intellectual property and a researcher at the Catholic University in Louvain, singles out the absence of a specific scheme for SMEs, similar to the systems in place in Japan and the United States, which he says could be a worthwhile alternative. He also calls into question the priority of making the patent system more accessible to foreign companies.

How will the Commission’s proposal allow progress on this issue, which has been in a dead end for so long?

The creation of the EU patent has been held up for 40 years because the member states cannot agree on two questions: litigation and language rules. The first could be resolved with the Council’s agreement of 4 December 2009 on the proposal for a single patent court system. The EU Court of Justice still has to give its opinion. The second is addressed by the Commission’s new proposal, which could bring about an agreement.

Why is so much importance attached to the language aspect?

The language rules for patents represent important stakes, cultural to start. Use of a single language undermines cultural diversity, which is a source of innovation and adds to the EU’s richness. The stakes are also political: a number of member states wish to protect their national interests by obtaining recognition of their language in the EU patent system and it is difficult for any state to see a foreign language recognised as having a sort of supremacy over the national language. Above all, the stakes are economic. Language diversity has a price: translations. That is why everyone agrees that the patent system in Europe is costly. The conclusions drawn from this finding, however, are not unanimous.

The Commission continues to point out that an inexpensive patent system would stimulate investment in R&D and innovation and would therefore be a strong point for the European economy. This analysis needs to be taken further, however. It is important to make a distinction between two issues. The first is access by European SMEs, the main vectors of innovation, to the patent system. Reducing translation requirements and costs would help improve SME access to the system. But alternatives exist: establishment of a special scheme for patent applications submitted by SMEs, for instance, like the systems in Japan and the United States. In that connection, it is surprising that a specific scheme for SMEs is at best mentioned vaguely in the Commission’s recent proposals and is not set out as a key objective matched with concrete and binding measures.

The second question concerns opening the European patent system to non-European enterprises. By reducing the cost of EU patents and easing the translation requirements, the European patent system is made more accessible to foreign firms. But do we really want more patents on EU territory to be held by foreign firms, which can then obtain an import monopoly for goods manufactured outside the EU? How can that generate jobs and growth in the EU? Because there is a real prospect of seeing Chinese companies become leaders in patents. According to a study carried out by the Bruegel Institute between 2001 and 2008, the number of patent applications in China has risen from just over 50,000 to almost 300,000, more than in Europe (230,000 applications). Nor should we underestimate public investment in R&D, which is much higher in China than in Europe or the United States. While we welcome the dynamism of the emerging economies and the resulting development for populations all over the globe, we should ask ourselves whether our priority is to make our patent system more accessible to foreign companies or first to achieve other objectives of the ‘Europe 2020’ strategy, such as an investment of 3% of GDP in R&D. Today we are barely at 1%. Improving access to the patent system will reward those who invest in R&D and Europeans’ lack of dynamism in that area is flagrant.

Will machine translations really help companies?

Without being an expert in the field, I have the impression that translation software is increasingly effective. However, for translating highly technical texts with a specialised vocabulary, an adaptation period will be needed. Over the longer term, IT tools should provide interesting solutions.

Isn’t this a minimal concession for sweetening the pill, so to speak?

To date, it takes from three to four years from the time the patent application is filed for the official translations of European patents to be available. So when the information becomes accessible in several languages, it is already outdated due to the speed of innovation. The use of machine translation, which is admittedly less reliable than official translation, offers interesting prospects because it will enable the user to make an initial selection in the information and to have translated only what is relevant for him. In my view, that is not so much a concession as an improvement of the system for all its users.