Considerations on COM(2000)412 - EC patent

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dossier COM(2000)412 - EC patent.
document COM(2000)412 EN
date July  5, 2000
 
(1) The activities of the Community include the establishment of an internal market characterised by the abolition of obstacles to the free movement of goods and the creation of a system ensuring that competition in the internal market is not distorted. The creation of the legal conditions enabling undertakings to adapt their activities in manufacturing and distributing products to a Community dimension helps to attain these objectives. A patent to which uniform protection is given and which produces uniform effects throughout the Community should feature amongst the legal instruments which undertakings have at their disposal.

(2) The Munich Convention on the Grant of European Patents of 5 October 1973 (hereinafter referred to as the 'Munich Convention') established the European Patent Office (hereinafter referred to as 'the Office') and entrusted it with the task of granting European patents. The expertise offered by the Office should be used in the granting and administration of the Community patent.

(3) The accession of the Community to the Munich Convention will enable the Community to be included in the Convention system as a territory for which a unitary patent can be granted. The Community can, therefore, limit this Regulation to the creation of the law applicable to the Community patent once granted.

(4) Community patent law applicable to the Community patent should not replace the laws of the Member States on patents, nor European patent law as established by the Munich Convention. It would not in fact appear to be justified to require undertakings to apply for registration of their patents as Community patents, since national patents and European patents continue to be necessary for those undertakings which do not want protection of their inventions at Community level. This Regulation should therefore be without prejudice to the right of the Member States to grant national patents.

(5) The objective of an affordable Community patent militates in favour of a patent that is valid throughout the Community in the language in which it was granted under the Munich Convention.

(6) Any negative effects of a monopoly created by a Community patent should be prevented through a system of compulsory licences. The Commission should therefore be given decision-making powers in this matter. Commission decisions are subject to appeal under Article 230 of the Treaty before the Court of First Instance of the European Communities and before the Court of Justice of the European Communities.

(7) For reasons of legal certainty, all actions relating to certain aspects of the Community patent should come under the jurisdiction of one court, and the decisions of that court should be enforceable throughout the Community. Exclusive jurisdiction for a certain category of actions and applications relating to a Community patent, and in particular for actions relating to infringement and validity, should therefore be given to the Community intellectual property court. Judgments of a Chamber of First Instance of that court should be subject to appeal to a Chamber of Appeal of that court.

(8) The court ruling on infringement and validity should also be able to rule on penalties and compensation for damage on the basis of common rules. Those powers are without prejudice to the powers to apply any rules on criminal liability and unfair competition provided for under the Member States' national law.

(9) The rules for proceedings before the Community intellectual property court are laid down in the court's statute and rules of procedure.

(10) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of the proposed action, in particular the creation of a unitary right with effect throughout the Community, can be achieved only by the Community. This Regulation confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.

(11) Since the measures necessary for implementing this Regulation are measures of general scope within the meaning of Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission  i, they should be adopted in accordance with the regulatory procedure laid down in Article 5 of that Decision.