Answer given by Mr McCreevy on behalf of the Commission
The explanatory memorandum of the Commission's proposal(1) for the Community patent Regulation states that the European Patent ‘Office will apply to the Community patent the case law which it has developed for the European patent, to the extent that the rules in the Regulation and the Convention are identical’.
The Commission's proposal on the Community patent is not intended to amend the structure of the European patent system. Rather, it provides a link between the Community and the European Patent Office (EPO), which is not a Community body. While the pre‑grant phase of the Community patent (including the procedural and substantive issues) could in principle be governed by the European Patent Convention (EPC), the post-grant aspects of a Community patent (including questions of validity, infringement, assignment and statutory or compulsory licensing) would be governed by the Community patent regulation. The EPO Patent Office would thus actually apply and be bound by a new unitary Community law with respect to Community patents. Indeed, an important feature of the proposed Community patent system is the accession of the Community to the EPC. By this, the convention becomes part of the Community acquis and subject to interpretation by the European Court of Justice (ECJ). The ECJ is not bound by the case law developed by the EPO and is free in its interpretation of the provisions of the EPC, once it becomes part of the Community acquis.
Moreover, with respect to the particular cases mentioned by the Honourable Member, the draft Community patent Regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC, may be invalidated in a relevant court proceeding.
This being said, the Directorate-General for the Internal Market and Services has launched a broad consultation of all interested parties on the future patent policy in Europe, with a particular focus on the structure of the European patent system. The Community patent, including the common political approach which was reached by the Council on 3 March 2003, forms part of the questions addressed to all stakeholders. The deadline for the consultation was 12 April 2006 and preliminary findings will be discussed with stakeholders at a hearing in Brussels that will most probably take place in June 2006. The Parliament will of course be duly informed of the results of this consultation.