The London Protocol is an agreement reached in October 2000 between the countries of the European Patent Office (EPO), that is to say, signed the Munich agreement in 1973.

This protocol is intended to simplify the language regime of patents in Europe , inviting countries to waive, by acceding to some of the translation requirements at the stage of the validation of European patents.

The Protocol entered into force on 1 May 2008 in thirteen countries that have adopted it.

The "official" languages of the Munich Agreement of 1973

Currently, the European Patent Office (EPO) does consider the patent applications in English, German or French. This situation results from the Munich Agreement of 1973 .

We note however that Italy is ^the 3rd European country in number of European patents obtained, behind France ^(2nd) and Germany ^(1st), and ahead of the United Kingdom ^(4th) . Some Italian officials logically require that Italian is an official language of the European Office.

The languages of publication of patent applications

Currently, European patent applications are published every 18 months, review, and the language of the applicant, without translation.

The publication languages are French, English and German in the framework of the European Patent Convention (EPC) of 1973.

Changes proposed by the London Protocol

The London Protocol provides for two regimes on the life of the patent after its issuance.

First regime

Countries that have a language in common with an official language of the European Patent Office (that is to say, English, French or German), no longer require a translation of European patents in their national language. The issued patent is issued with a version of the claims in each language.

This scheme applies to the following countries:

• Germany
• France
• Liechtenstein
• Luxembourg
• Monaco
• United Kingdom
• Switzerland

It could also refer Belgium, Ireland and Austria, but these three countries refused to sign the Protocol of London.

Second regime

Each country with no official language is a language of the EPO may choose one of the official languages of the EPO (English, German, or French) as "prescribed language". European patents must then be translated into the language required to enter into force, country by country. These countries retain the right to require the translation of the claims in one of their national languages.

This scheme applies to the following countries (for language or claims):

• Croatia (Croatian)
• Denmark (Danish)
• Iceland (Icelandic)
• Latvia (Latvian)
• Netherlands (Dutch)
• Slovenia (Slovenian)
• Sweden (Swedish)

Countries that have signed the Protocol prescribes a language all chose English. Latvia and Slovenia have waived any translation of the description.

The following countries do not implement the London Protocol and therefore require full translation issued:

• Austria
• Belgium
• Bulgaria
• Cyprus
• Czech Republic
• Estonia
• Spain
• Finland
• Greece
• Hungary
• Ireland
• Italy
• Lithuania
• Malta
• Norway
• Poland
• Portugal
• Romania
• Slovakia
• Turkey

Common provision

• In addition, all countries participating in the agreement retain the right to require that any litigation based on a patent, a full translation is provided by the licensee in the national language.

Debates

Various legal scholars have questioned procedural implementation of that provision: how a court could judge it an infringement of a foreign-language title on the basis of a translated text after the fact, for example after seizure at the competitor ?

Some say as that provision is inapplicable.

• Moreover, the simple translation of claims would be completely ineffective. Indeed, the claims, according to the Munich Convention, must be "concise" and interpreted "according to the description" , which also frequently reminds the jurisprudence of the EPO.

• Moreover, the lack of description is a ground for invalidating patents .

For these two reasons, the description is needed to judge the validity and scope of a patent , and translation of simple claims is insufficient.

In Europe

The countries of Southern Europe (Spain, Portugal, Italy, Greece) were excluded from the protocol, as well as Austria, Belgium, Ireland, Finland, Poland, Hungary, the Czech Republic and Slovakia .

In Germany, Angela Merkel called the London Protocol "in the right direction," the first half of 2007. Germany ratified the London Protocol in 2002.

The European Commission has repeatedly expressed support of the London Protocol.

Swedish employers has meanwhile taken several times in favor of English only solution, a solution rejected by most politicians, except for Swedish and Swiss politicians.

The Spanish authorities are known for speaking against the deepest reluctance against any solution that does not give a special place in the Spanish language, they argue that it is spoken by hundreds of millions of people worldwide.

In Belgium, where the language issue is sensitive, concerns have been expressed in the media, and it has been argued that Belgium should sign the protocol of London that if the compensation offered to them by the Netherlands and Germany . Belgium has not signed the London Protocol to the date of November 2007 (and a fortiori has not ratified).

France

In France, some manufacturers (particularly big business represented by MEDEF) favor the London Protocol. By cons, various associations , committees and institutions (including the French Academy ) object. Jean-Pierre Raffarin , prime minister from 2002 to 2005 was also made for a renegotiation of London Protocol .

Senate President Poncelet and the Department of Justice have also expressed reservations. The same is true of Rudy Salles, vice president of the National Assembly, member of the opposition to the London Protocol .

We note that while France had signed the agreement in 2000 on the initiative of the Secretary of State Ch Pierret, nor the Jospin government, or governments Raffarin and de Villepin have taken the initiative to conduct ratification.

In spring 2006, more than sixty members of the majority before the constitutional court to declare unconstitutional the London Protocol. However, a decision of the Constitutional Council of 28 September 2006 concluded in conformity with the London Protocol to the French Constitution, introducing the concept of "persons concerned" by a patent, a concept apparently having the effect of reducing the effect erga omnes the patent, and assimilate it to an implicit contract between the people involved in industrial activity.

The debate on the ratification of the London Protocol in France was revived in July 2007 by the French government , but still raises several objections, including those of several parliamentarians of the National Bar Council, representing the profession lawyers, expressed in a resolution at the beginning of August 2007.

The law authorizing the French Government to ratify the London Protocol was published in the Official Gazette of October 18, 2007, after his vote in the National Assembly and the Senate in September and October 2007. The London Protocol entered into force on 1 May 2008.

The Munich Convention and the French constitution

The French Constitution provides that sovereignty belongs to the people and exercised through their representatives and the way the referendum .

The constitutional council has also decided that no constitutional provision authorizes the transfer of all or part of national sovereignty to "any international organization whatsoever" .

The European Patent Organisation comes under the category of international organizations, since it is not a community organization.

In addition, the grant of a patent falls into the category of individual administrative acts .

Administrative acts are punished by administrative judges and / or judicial, and therefore ultimately by the State Council and the Court of Cassation. These representatives of the people .

legal uncertainty for SMEs and entrepreneurs

• The London Protocol would be a "Big Business Act, instead of the Small Business Act" U.S.. SMEs are facing difficulties in recruiting qualified staff trilingual technically and legally.
• The London Protocol would create additional legal uncertainty for SMEs who lack the means to analyze patents in foreign languages and in large numbers. SMEs would find themselves facing significant legal risks .
• Investors are also discouraged from investing in start-ups, for fear they will not infringe patents owned by foreign companies, which are difficult to detect and analyze because in English or German.
• The London Protocol and promote the practices of patent trolls , which are forcing companies in trouble to pay them licensing patents whose validity is questionable and they do not exploit necessarily by threatening to sue.
• Large companies would be able to constrain small to accept their conditions, their opponent in the entire patent portfolios in foreign languages.
• The London Protocol also lead to the demise of the profession of technical and scientific translator, to the detriment of SMEs, who need the services of these professionals .
• The legal uncertainty for SMEs would be particularly strong in France because of the unpredictability of court decisions ruling in patent case law which is fluctuating and imprecise. This French specificity is due to the lack of technical training for patent judges (unlike the German practice in particular) and the prohibition on patent attorneys to argue in court (unlike German practices, including U.S. and UK).

The low propensity to patent of French engineers

It first recalls that the French patent is the cheapest of the major industrial patents , suggesting that the cost of the patent is not a determining factor in the French situation.

• The London Protocol does not alter the cultural problem of French companies that consider the R & D as an expense, so that U.S. companies (and German) consider R & D as an investment: with declining costs of patents, French companies have less reflex that American companies to reuse the saved money for R & D and patents .

Lower costs of patents in France will therefore result in an increase in the share of patents of foreign origin in France. That is certainly what we see since the signing of the Munich Convention: lower costs of proceedings was parallel to the declining share of patents in force in France and of French origin.

• The London Protocol does not alter the lack of legal awareness of French engineers and scientists, due to the lack of adequate training in engineering schools and in French universities, which is such that some industry executives know the criteria for patentability in France .

• It would put French companies at a disadvantage, the French population speaking English less well mean that the German population, for example, few engineers and lawyers and French speaking German.

• It therefore aggravate distrust patents, already strong in France.

Criticism of the protocol

Inadequacy of the measure proposed by the protocol

• Translation costs involved for several years (5 in average) after the deposition, at a time when businesses know whether or not the invention has a market, the impact of lower translation costs on the propensity of firms to file patent applications would be low.
• Conversely, lower tax filing, search and examination that must be paid earlier, at a time when businesses do not know if the invention will make money or not would have a much more sure to encourage innovation.

We note for example that the search fee to the EPO is 4 times higher than the search fee to the U.S. Patent Office for SMEs. The examination fee is itself 10 times higher in the EPO at the U.S. Patent Office.

• The EPO has made a profit of 336 million euros in 2005 , the cost of translation would not be an obstacle to innovation.
• The London Protocol does not imply any discipline of maintenance fees collected for the benefit of states and patent offices: a country may sign the protocol, while increasing the annual fees it imposes on patentees and and take advantage of waivers of requirements for translation of other signatory countries while discouraging the extension of patents on its territory .
• Thus, the London Protocol would divert attention from excessive taxes levied by the European states (and the European Patent Office) Patent: tax issue, validation fees, annual maintenance fees in force.

France would also one of the European countries where taxes are for maintenance of the lowest .

• The London Protocol would induce weak economies also for French companies, since few countries have ratified it (only the translations in Dutch and French would be systematically removed) .

A deal that leaves out the major European countries

• Italy ⁽³ rd European country for number of patents issued, 60 million people) refuse to sign the Protocol of London, the Italian is not the official language of the EPO.
• Spain (45 million) and Poland (39 million) also refused to sign the Protocol of London.

Switching to all English and subjugation of non-English speaking

• The London Protocol would encourage European companies to file patents directly in English without using an original version in the national language .
• Countries with no official language is a language of the EPO (see second scheme above) who decide to ratify all choose English as prescribed, and English would become a compulsory language translation all the patents .
• It would lead to the impoverishment of French and other European languages and would endorse a move to English at all, or any "Globish" .
• It would lead to a predominance of de facto law practice common law and jurisprudence in the English language at the expense of civil law and case law .

Besides the cultural issue, it would result in competitive advantage for businesses Anglo-Saxon, who would benefit by their linguistic culture and legal culture.

• the London Protocol would restrain inventors and small non-English speakers, and therefore reduce the dynamics of innovation in non-English speakers who would be in a position of "vassalage vis--vis the power" .

In court, no one would be ignorant of English, German and French

• The London Protocol would violate the principle of equality before the law. Indeed, in court, a certificate in English or German would be enforceable. What the Bar summarized by the phrase "the adage is no excuse to ignore the law would be completed by everyone should know English and German" .
• However, patent infringement is a criminal offense (up to 3 years in prison and 300,000 euro fine) , the London Protocol would violate the European Convention on Human Rights .

Weakening of patent rights in Europe

• The London Protocol would impose a weakening of patent rights, sanctions imposed on the basis of a foreign language document could not be higher. Counterfeiting would be encouraged as badly punished .

However, to encourage innovation, it would be necessary instead to strengthen patent rights by punishing more severely counterfeiting, as would be the case in the United States or Germany.

A partial agreement that does not address the legal and democratic control of patent rights in Europe

• The question of the language of patents in Europe should be a package deal with the issue of courts for handling cases involving patent infringement and the territorial scope of their decisions.

See in this regard

- The draft Treaty EPLA (European Patent Litigation Agreement) (it says that the London Protocol is not necessary for the establishment of PALS)

- The interim position in February 2007 the Legal Service of the European Parliament on the subject (interim legal opinion SJ-0844/06)

- The judgments of the Court of Justice of European Communities of 13 July 2006 C539/03 C4/03 and considering that the current treaty text does not allow European injunctions in patent infringement.

• It should be possible to include this project in an overall consideration of the patent in Europe (including the patentability of software or alive), and the knowledge economy (see in this regard the position of the FFII ).

Grant no consideration in international relations

For the member Jacques Myard , the London Protocol is a concession without compensation in the United States and Asian countries, which benefit from the London Protocol, while continuing to require translations respectively in English, Chinese, Japanese and Korean the filing of patent applications. He denounced the risk that French companies are overwhelmed by U.S. Patent written in English and Asian .

See also

Related articles

• Ordinance of Villers-Cotterets (which prompted the proclamation of an appeal from Villers-Cotterets in 2001 )
• Language Policy of France
• Language Policy of the European Union
• Article 2 of the Constitution of the Fifth French Republic , which states that French is the official language of the French Republic
• Dublin Core : the language (metadata) and rights (metadata) are two elements of metadata that standard

External Links

• ADIF - An opponent of the London Protocol and the right to information in French
• Position of the Compagnie Nationale ds Intellectual Property Attorneys (March 26, 2007)
• The site of an opponent to the London Protocol
• Debate in National Assembly
• Issue in the Senate and Government Response

References

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