Commission staff working document - Impact assessment - Accompanying document to the Proposal for a Council Regulation on the translation arrangements for the European Union patent {COM(2010) 350 final} {SEC(2010) 797}
Date: 2010-06-30
Institutions: European Commission
Subjects: European Patent Office, European patent, impact study, industrial property, intellectual property, patent, translation

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EUROPEAN COMMISSION 

Brussels, 30.6.2010 
SEC(2010) 796 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT 

Accompanying document to the 

Proposal for a 

COUNCIL REGULATION 

on the translation arrangements for the European Union patent 

{COM(2010) 350 final} 
{SEC(2010) 797} 

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Disclaimer 

This  impact  assessment  report  commits  only  the  Commission's  services  involved  in  its 
preparation. The report has been prepared as a basis for comment and does not prejudge the 
final form of any decision to be taken by the Commission. 

1. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

1.1. 

Organisation and timing 

The  Commission's  initial  proposal  for  a  Council  Regulation  on  the  Community  patent  was 
presented on 1 August 2000, on the basis of Article 308 EC. It covered all elements for the 
creation of a single EU-wide patent, including translation arrangements1.  

The entry into force of the Lisbon Treaty on 1 December 2009 has resulted in a change of the 
legal basis for the proposal for the Regulation on the Community patent (now EU patent): 

•  in accordance with the first subparagraph of Article 118 TFEU, measures for the creation 
of European intellectual property rights are to be established by the European Parliament 
and the Council acting under the ordinary legislative procedure; 

•  in  accordance  with  the  second  subparagraph  of  Article  118  TFEU,  the  language 
arrangements for European intellectual property rights are to be established under a special 
legislative  procedure  by  the  Council  acting  unanimously  after  consulting  the  European 
Parliament.  It  follows  that  the  translation  arrangements  for  the  future  EU  patent  must  be 
established by a separate regulation subject to a different legislative procedure. 

On  4  December  2009,  the  Council  adopted  conclusions  on  the  Enhanced  patent  system  in 
Europe2. The conclusions (§36) state that "The EU patent Regulation should be accompanied 
by a separate regulation, which should govern the translation arrangements for the EU patent 
adopted by the Council with unanimity in accordance with the second subparagraph of Article 
118  TFEU.  The  EU  patent  Regulation  should  come  into  force  together  with  the  separate 
regulation on the translation arrangements for the EU patent." On this basis, the Commission 
is presenting a proposal for a Council Regulation on the translation arrangements for the EU 
patent.  

1.2. 

Internal consultations 

The Impact Assessment was monitored by an Inter-Services Steering Group. The last meeting 
of the Steering Group was convened on 25 March 2010. 

A draft of this Impact Assessment Report was submitted to the Impact Assessment Board on 
29  March  2010.  The  Board  met  on  14  April  2010.  In  its  opinion  dated  16  April  2010,  the 
Board found that the report provided the necessary evidence base for action in the area, but 
suggested further improvements in the analysis on a number of issues.  

1 
2 

Proposal for a Council Regulation on the Community patent - COM(2000) 412. 
Council  Document  17229/09,  Annex:  Council  conclusions  on  an  enhanced  patent  system,  adopted  in 
2982nd  Council  meeting  -  Competitiveness  (Internal  market,  Industry  and  Research);  Brussels, 
4 December 2009. 

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The  IA  Board  recommended  that  the  current  context  and  problem  definition  should  be 
strengthened  in  order  to  facilitate  the  analysis  of  the  impacts,  political  feasibility  and 
subsidiarity  of  the  proposed  options.  It  also  recommended  strengthening  analysis  of  the 
change  in  costs  across  different  options  and  distinguishing  more  clearly  between  the 
economic  factors  and  political  constraints.  The  IA  Board  proposed  that  aggregate  cost 
estimates  at  the  EU  level  are  provided  for  each  option  and  as  compared  to  the  baseline 
scenario.  A  more  extensive  analysis  of  the  problem  drivers,  including,  for  example,  a  more 
detailed explanation on a low validation rate, was also recommended.  

All of the above comments from the IA Board have been taken into account in revising the 
impact  assessment.  On  the  basis  of  the  revised  economic  analysis,  Option  2  has  been 
identified as the preferred one for the legislative proposal.  

1.3. 

Consultation of interested parties 

The  views  of  interested  parties  concerning  the  translation  arrangements  for  the  EU  patent 
have been heard on several previous occasions.  

In January 2006, the Commission launched a broad consultation on the future patent policy in 
Europe3.  More  than  2500  replies  were  received  from  a  variety  of  stakeholders,  including 
businesses  in  all  sectors  of  the  economy,  industry  associations,  SME  associations,  patent 
practitioners,  public  authorities  and  academics.  The  replies  clearly  showed  stakeholders' 
disappointment  with  the  lack  of  progress  with  the  Community  patent  project.  In  particular, 
sharp  criticism  was  voiced  against  the  translation  arrangements  included  in  the  Council's 
common  political  approach  of  3 March  2003,  which  laid  down  that  the  patent  proprietor 
would  have  to  supply  a  translation  of  the  claims  into  all  official  Community  languages4. 
Nearly all stakeholders rejected this solution as being unsatisfactory: criticisms focused on the 
high costs and practical difficulties for patent proprietors as well as the legal uncertainty for 
all  users  of  the  patent  system.  The  support  for  other  options  varied  substantially;  some 
stakeholders  requested  an  English-only  regime,  while  others  preferred  various  multilingual 
arrangements.  

Despite the above criticisms, stakeholders also expressed continued support for the concept of 
a  "unitary,  affordable  and  competitive"  Community  patent.  This  message  was  repeated  at  a 
public hearing held on 12 July 2006, where a large variety of stakeholders again stated their 
support for the creation of a Community patent – but not "at any price". SME representatives 
in  particular  confirmed  that  the  translation  arrangements  in  the  common  political  approach 
would be far too costly for them5. 

On  the  basis  of  the  stakeholder  consultation,  the  Commission  adopted  the  Communication 
"Enhancing the patent system in Europe" in April 20076 which outlined the way forward as 
envisaged by the Commission, including the creation of the Community patent and possible 
solutions for the translation arrangements. 

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The  consultation  document,  replies  from  stakeholders  and  a  report  on  the  preliminary  findings  of  the 
consultation are available at http://ec.europa.eu/internal_market/indprop/patent/consultation_en.htm.  
Council Document 6874/03, 2490th Council meeting - Competitiveness (Internal market, Industry and 
Research), Brussels, 3 March 2003. 
http://ec.europa.eu/internal_market/indprop/docs/patent/hearing/report_en.pdf.  
Communication from the Commission to the European Parliament and the Council - COM(2007) 165, 
3.4.2007. 

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Discussions  with  stakeholders  continued  on  the  basis  of  this  Communication  throughout 
2008.  On  16-17  October  2008,  the  Commission  jointly  with  the  French  Presidency  of  the 
Council  organised  a  conference  on  Industrial  Property  Rights  in  Europe7.  One  of  the  major 
issues  discussed  were  the  possible  translation  arrangements  for  the  future  EU  patent. 
Participants reiterated in particular that the EU patent "should be cost-effective, legally secure 
and reduce complexity", and expressed broad support for new initiatives aiming at developing 
specialised machine translation programmes for patent documents8. 

On 14 October 2008, a "European Parliament of Enterprises" (meeting of 774 entrepreneurs 
from  European  countries,  supported  by  Eurochambres  and  national  chambers  of  commerce) 
debate  was  held  in  the  European  Parliament.  An  overwhelming  majority  of  represented 
entrepreneurs emphasised that the continued lack of a single EU-wide patent was damaging to 
European businesses and called for the creation of the EU patent as soon as possible9. 

The issue of translation arrangements for the EU patent has also been extensively addressed in 
the  consultation  on  the  Small  Business  Act  –  a  range  of  initiatives  targeted  to  the  needs  of 
European  SMEs  in  2008.  Again,  stakeholders  identified  high  patenting  costs  as  the  main 
obstacle to patent protection in the EU and requested the creation of a unitary EU patent as 
soon as possible10. In their separate submissions to the consultation, businesses in general and 
SME representatives in particular unequivocally requested a significant reduction of the costs 
of patenting (including translation costs) for the future EU patent11. 

Numerous recent position papers from various stakeholders refer to the EU patent and to the 
translation arrangements. European interest groups representing users of the patent system in 
Europe, such as BusinessEurope12, UEAPME13 and Eurochambres14, confirm that businesses, 
both large and small, request a simplified, cost-effective and accessible EU patent. National 
interest  groups  in  many  Member  States  and  across  industry  sectors15  raise  identical  issues: 
direct  translation  costs,  indirect  costs  related  to  translations  (for  example  fees  charged  by 
patent  agents  and  publication  fees  charged  by  national  patent  offices)  and  statutory 
complexity  (red-tape  such  as  formal  requirements  to  be  complied  with  when  filing  the 
translations  at  the  national  patent  offices)  are  identified  by  stakeholders  as  major  obstacles 
preventing innovative businesses from obtaining patent protection throughout the EU. A new 

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the  European  Parliament  of  Enterprises  on  14  October  2008,  available  at 

Documents and conclusions of the Conference are available at 
http://ec.europa.eu/internal_market/indprop/rights/index_en.htm. 
See Council document 6985/08, 28 February 2008 and Council document 8928/08, 28 April 2008. 
Results  of 
http://www.eurochambres.eu. 
Small  Business  Act  for  Europe,  Report  on  the  Results  of  the  Open  Consultation,  22  April  2008, 
available at www.ec.europa.eu/enterprise/newsroom. 
UEAPME  Expectations  on  the  Proposal  for  a  European  Small  Business  Act,  14  December  2007, 
available  at  www.ueapme.com.  Response  to  the  Consultation  on  a  Small  Business  Act  for  Europe, 
2 April 2008, available at http://www.eurochambres.eu. 
Views  on  key  issues  of  the  patent  reform  debate  in  Europe,  11  August  2008,  available  at 
http://www.businesseurope.eu. 
Position on the recent policy developments on the European Community patent, 19 June 2008, available 
at http://www.ueapme.com. 
Position paper on the European Patent System, 8 April 2008, available at http://www.eurochambres.eu. 
Position papers from BDI (Bundesverband der Deutschen Industrie), DIHK (Deutscher Industrie- und 
Handelskammertag),  CBI  (Confederation  of  British  Industries),  CCIP  (Chambre  de  commerce  et 
d'industrie  de  Paris),  CGPME  (Confédération  générale  des  petites  et  moyennes  entreprises), 
Unioncamere,  DigitalEurope,  Orgalime,  ACT  (Association  for  Competitive  Technology),  Cefic  and 
others. 

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approach  based  on  specialised  machine  translations  is  generally  welcomed,  but  it  is 
emphasised  that  such  machine  translations  must  not  have  any  legal  effect  and  be  used  for 
information purposes only.  

2. 

POLICY CONTEXT, PROBLEM DEFINITION AND SUBSIDIARITY 

2.1. 

Policy context 

2.1.1.  The Patent Systems in Europe 

In the EU, patent protection can be obtained either through the national patent offices of the 
EU Member States or the European Patent Office (EPO). 

National patent systems 

Each  Member  State  has  its  own  patent  office  which  deals  with  applications  for  national 
patents.  If  an  application  and  the  invention  to  which  it  relates  meet  the  requirements  of 
national patent law (in particular the patentability requirements), a national patent is granted. 
The protection conferred by a national patent is limited to the territory of the State concerned. 
Normally, European inventors and businesses choose to file patent applications at a national 
patent office first. Following a novelty search and a preliminary examination carried out by 
the  national  office,  the  applicant  then  decides  whether  to  pursue  or  abandon  the  national 
patent application, apply for a European patent at the EPO, or file a patent application under 
the international Patent Cooperation Treaty (PCT). 

The European patent system 

If the applicant chooses to apply for a European patent, the application will be dealt with by 
the EPO under the procedures laid down in the European Patent Convention (EPC). The EPC 
was  adopted  in  1973  and  entered  into  force  in  1977.  It  does  not  form  part  of  the  EU  legal 
order, but all EU Member States are Contracting States to the EPC16.  

The  EPC  has  established  centralised  procedures  for  the  search,  examination  and  grant  of 
European patents. On the basis of one single patent application processed in one of the three 
working languages of the EPO (English, French and German), inventors and businesses can 
obtain a European patent for one or more Contracting States to the EPC.  

Of  particular  relevance  for  the  present  impact  assessment  is  the  fact  that  any  patent 
application is published by the EPO eighteen months after the date of filing, in the working 
language  of  the  EPO  in  which  the  application  is  processed  (the  language  of  proceedings) 
(Article  93  EPC).  The  application  (which  comprises  claims,  description  and  drawings17)  is 
thus made available to the public, in electronic format on the European publication server18.  

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Other larger Contracting States to the EPC include Croatia, Iceland, Norway, Switzerland and Turkey. 
The claims define the matter for which protection is sought; they determine the extent of the protection 
conferred  by  the  patent  (Articles  84  and  69  EPC).  The  description  indicates  the  background  art, 
discloses the invention, describes at least one way to carrying it out and indicates the way in which the 
invention  is  industrially  applicable;  the  description  is  used  to  interpret  the  claims  (Rule  42  and 
Article 69 EPC). 
The European publication server is the EPO's internet-platform for obtaining on-line copies of European 
patent  applications  and  European  patents.  New  publications  are  uploaded  every  week.  See 

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If  eventually  granted  by  the  EPO19,  the  European  patent  is  published  by  the  EPO  in  the 
language  of  proceedings,  together  with  a  translation  of  the  claims  in  the  two  other  working 
languages of the  EPO (Article  14(6)  EPC). The  authentic text of  the European  patent is the 
text  in  the  language  of  proceedings  –  both  in  proceedings  before  the  EPO  and  in  any 
Contracting State to the EPC (Article 70(1) EPC). 

A European patent has the same legal effect as a national patent in the Contracting States to 
the EPC in which the patent proprietor desires protection for his/her invention. However, the 
European patent does not take effect automatically in most Contracting States. It must first be 
validated in the States in which the patent proprietor wishes protection. 

Validation requirements. National law may require that the patent proprietor: 

–  files  with  the  national  patent  office  a  translation  of  the  European  patent  into  the  official 

language of the State where protection is desired, 

–  pays a publication fee to the national patent office, and 

–  complies with various formal requirements relating in particular to the number of copies to 

be filed, use of prescribed forms, and time periods. 

Where  the  patent  proprietor  fails  to  observe  any  of  the  above  validation  requirements  in  a 
particular State, the European patent is deemed to be void ab initio in that State. Although the 
requirement  of  a  translation  has  always  been  optional  for  EPC  Contracting  States,  many 
countries  selected  to  apply  this  requirement  from  the  entry  into  force  of  the  EPC.  Other 
countries  that  did  not  initially  require  translations  followed  suit,  thereby  adding  costs  and 
complexity for companies in Europe when patenting beyond national borders. For example, as 
a  founding  EPC  Contracting  state,  the  United  Kingdom  initially  did  not  require  translations 
into English but introduced such requirements from 1987, ten years after the EPC entered into 
force20. 

The London Agreement. In order to reduce the costs caused by validation requirements, the 
Agreement on the application of Article 65 EPC (London Agreement) was adopted in October 
2000  by  an  Intergovernmental  Conference  of  the  EPC  Contracting  States21.  The  London 
Agreement is an optional scheme, allowing for collective action to reduce patenting costs. It 
entered into force on 1 May 2008 for fourteen EPC Contracting States of which ten are EU 
Member States22. 

Contracting  States  with  an  official  language  in  common  with  one  of  the  EPO  working 
languages  that  are  party  who  are  party  to  the  London  Agreement  are  required  to  dispense 

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https://data.epo.org/publication-server/?lg=en for the platform in the English language. Other platforms 
maintained  by  EPO  also  enable  on-line  access  to  European  patent  documents;  see  esp@enet,  epoline 
and Register Plus. 
On  average,  in  2008,  a  granted  European  patent  was  published  43  months  after  the  application  was 
received, see Annual Report of the EPO, 2008. 
UK  Intellectual  Property  Office  Manual  of  Patent  Practice,  Section  76,  at  http://www.ipo.gov.uk/pro-
types/pro-patent/p-law/p-manual/p-manual-practice/p-manual-practice-pat1977.htm 
OJ EPO 2001, 550.  
The London Agreement entered into force on 1.5.2009 in the following EU Member States: DE, DK, 
FR, LU, LV, LT, NL, SE, SI and UK. The other States parties to the Agreement are CH/LI, HR, IS and 
MC.  

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entirely  with  translation  requirements  (Article  1(1)  of  the  Agreement).  Within  the  EU,  this 
applies to France, Germany, Luxembourg and the United Kingdom. 

Contracting  States  not  having  an  official  language  in  common  with  one  the  EPO  working 
languages  may  require  a  translation  of  the  claims  into  their  official  language  and  nominate 
one of the working languages of  the EPO into which the description should be translated if 
this  is  not  the  language  of  proceedings  at  the  EPO  (Article  1(2)  and  (3)  of  the  London 
Agreement).  Within  the  EU,  Denmark,  Latvia,  Lithuania,  the  Netherlands,  Slovenia  and 
Sweden  require  translation  of  the  claims  into  their  official  language.  Of  these  countries, 
Denmark,  the  Netherlands  and  Sweden  have  nominated  English  for  translations  of  the 
description,  therefore  requiring  this  translation  if  the  patent  has  been  granted  in  French  or 
German. 

Seventeen  Member  States  are  not  parties  to  the  London  Agreement  and  still  require  a 
translation  of  the  entire  patent  into  their  official  language  (Austria,  Belgium,  Bulgaria, 
Cyprus, Czech Republic, Estonia,  Finland,  Greece,  Hungary23, Ireland, Italy,  Malta, Poland, 
Portugal, Romania, Slovakia and Spain)24. Despite the clear benefits for reducing the costs of 
patenting new technology for European companies in the domestic market, ratification of the 
London  Agreement  has  not  taken  place  in  most  EU  Member  States,  mainly  for  political 
reasons. 

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Hungary is expected to accede to the London Agreement on 1 January 2011. 
It should be noted that currently Ireland and Malta do not require a translation of a European patent into 
Irish and Maltese. For validation in Ireland and Malta, it suffices that the European patent is available in 
English. 

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Figure 1 – Translation requirements under the London Agreement in the EU Member States25 

EU Member States which have ratified the LA (10)

Language in common 
with the EPO (4) 

NO language in common
with the EPO (6)

Description 

Claims

EU Member States 
which have not 
ratified the LA (17)

D: NO

C: YES 

D: NO

C: YES 

D: EN

C: YES

D: YES 

C: YES 

DE, FR, LU, UK 

LV, LT, SI 

DK, NL, SE

AT,  BE,  BG,  CY,  CZ,  EE,  FI,  EL,  ES, 
(HU), IE, IT, MT, PL, PT, RO, SK 

FI GR

Source: Economic incongruities in the European patent systems: B van Pottelsberghe de la Potterie and M Mejer 
(2008) 

2.1.2.  The Community (EU) Patent Proposal 

Following  a  consultation  process  initiated  in  1997  by  a  Green  paper  on  promoting 
innovation26 – which first introduced the concept of creating the Community patent by means 
of  a  Regulation  –  the  Commission  adopted  a  proposal  for  a  Regulation  on  the  Community 
patent  in  August  200027.  This  was  also  a  response  to  calls  from  the  European  Council  in 
Lisbon  on  23  and  24  March  2000,  which  underlined  the  importance  of  introducing  a 
Community patent without delay.  

The  Commission  proposal  aimed  at  an  affordable  Community  patent  in  terms  of  translation 
costs: once the patent would had been granted in one of the  working languages of the EPO 
(English, French or German) and published in that language together with a translation of the 
claims into the other two working languages of the EPO, the patent would have taken effect in 
the  EU  without  any  further  translation.  Only  where  legal  proceedings  would  have  been 

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Source: van Pottelsberghe / Meijer, 20008, The London Agreement and the cost of patenting in Europe, 
Bruegel  Working  Paper,  2008/05  and  reproduced  in  "Economic  Cost-Benefit  Analysis  of  the 
Community  Patent"  by  van  Pottelsberghe  /  Danguy,  study  on  behalf  of  the  European  Commission; 
updated on the basis of www.epo.org/patents/law/legal-texts/london-agreement/status.html  
Promoting innovation through patents – Green paper on the Community patent and the patent system in 
Europe - COM(97) 314, 24.6.1997. 
Proposal for a Council Regulation on the Community patent - COM(2000) 412, 1.8.2000. 

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initiated  against  an  alleged  infringer  would  the  patent  proprietor  have  had  to  supply  a 
translation of the entire patent. 

In March 2003, the Council adopted a common political approach on the Community patent. 
This provided that patent proprietors would have to supply translations of the claims into all 
the official languages of the EU Member States which in addition could have had legal effect 
provided in Article 70(3) EPC28. Such a language arrangement would have been significantly 
more costly to patent proprietors than the original Commission proposal. Although intending 
to  provide  protection  for  third  parties  in  infringement  actions  when  a  translation  has  a 
narrower scope than the original language, the possible legal effect of claims translations into 
all  EU  languages  would  have  created  significant  legal  uncertainty.  It  was  consequently 
rejected by all users of the patent system as too costly and too risky. Another reason for the 
rejection  was  the  practical  difficulties  of  supplying  numerous  translations  within  a  limited 
time period after the grant of the patent. Following the 2003 common political approach, the 
Council failed to reach a final agreement on the Community patent.  

Given  the  importance  of  patent  policy  for  innovation,  the  Commission  launched  a  broad 
consultation  on  the  future  of  patent  policy  in  Europe  in  January  2006.  This  re-affirmed  the 
need  for  action  to  provide  a  simple,  cost-effective  and  legally-secure  Community  patent 
system, as well as stakeholders' continued support for the concept of a Community patent as 
yielding the most added value for European industry.  

Discussions on the Community patent were re-launched in the Council after adoption by the 
Commission of the Communication "Enhancing the patent system in Europe" in April 200729, 
which confirmed the  commitment  to the creation of  a  single Community patent as the most 
affordable  and  legally  secure  answer  to  the  challenges  with  which  European  businesses  are 
confronted in the field of patents and innovation. The Communication offered to explore with 
Member States how to simplify the translation arrangements with a view to reduce translation 
costs of the Community patent while increasing legal certainty for all innovative businesses. 

Most  recently,  in  December  2009  the  Council  adopted  conclusions  on  the  Enhanced  patent 
system for Europe and a general approach on the proposal for a Regulation on the EU patent. 
As explained in Section 1.1, due to the entry into force of the Lisbon Treaty and the change of 
legal basis for the creation of the EU patent, the translation arrangements for the EU patent 
must now be included in a separate regulation to be proposed by the Commission.  

2.2. 

Problem definition 

The lack of an EU patent entails a fragmented system for patent protection in the EU. Patent 
proprietors  appear  to  refrain  from  seeking  EU-wide  patent  coverage  due  mainly  to  the  high 
costs and complexity of validating European patents in several Member States. 

High costs of validation. Direct and indirect translation costs can add up to about 40% of the 
overall costs of patenting in Europe. It has been estimated that a European patent validated in 

28 

29 

Common political approach, pt. 2.3: "the applicant must, upon the grant of the patent, file a translation 
of all claims into all official Community languages except if a Member State renounces the translation 
into  its  official  language.  The  translation  will  be  filed  with  the  EPO  and  the  cost  borne  by  the 
applicant", see Council document 6874/03, referred to in footnote 4.  
Communication from the Commission to the European Parliament and the Council - COM(2007) 165. 

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13 countries is more than 10 times more expensive than a patent in the US or Japan30. These 
costs particularly affect SMEs, young innovative companies (YICs), start-up companies and 
public research organisations, and they impede access to the patent system.  

As  explained  in  section  2.1.1.2,  national  laws  of  most  EU  Member  States  require  that  the 
patent proprietor supplies translations of the patent into the official languages of the Member 
States  in  which  protection  is  sought.  The  translations  must  be  filed  with  the  national  patent 
offices,  which  shall  make  them  available  to  the  public.  Significant  costs,  red-tape  and 
complexity accrue in this process: 

- Costs of technical translations. Specialised translators are needed to translate the technical 
text contained in patents. On average, 85 EUR are charged per page31. The number of pages to 
be translated depends on the length of the patent: a patent of typical length contains 15 pages 
of description, 4 pages of claims and 1 page of drawings32. 

- Fees charged by patent agents. Local patent agents often act as intermediaries between the 
patent proprietor and the national patent offices where the translations are to be filed33. They 
may offer to arrange for translations or verify translations carried out by external translators, 
or they may offer to ensure that formal requirements laid down by national law are complied 
with34.  Fees  must  be  paid  by  the  patent  proprietor  for  such  services,  and  they  vary  from 
around 150 EUR to 600 EUR per validation of a patent depending on the Member State35. 

-  Official  fees  charged  by  national  patent  offices  for  the  publication  of  the  translations. 
Figure 2 below shows the publication fee (also known as "printing fee" in countries where the 
publication  still  consists  in  printing  the  patent  on  paper)  for  a  European  patent  of  typical 
length (20 pages)36.  

30 

31 

32 

33 

34 

35 
36 

Bruno  van  Pottlesberghe  de  la  Potterie  and  Didier  François,  the  Cost  factor  in  Patent  Systems, 
Université Libre de Bruxelles Working Paper WP-CEB 06-002, Brussels 2006, see pp.17 et seq. 
This estimation was taken as a basis by the Council in the common political approach of 3.3.2003. It is 
confirmed by data provided by translation service providers. 
Harhoff (et al.), referred to in note 27, arrive at a actual mean number of 21,24 pages per patent. The 
"Study on the Cost of Patenting" carried out by Roland Berger Market Research finds an average of 23 
pages, of which 4 pages of claims. 
In some Member States, national law appears to still require that such formalities be carried out by a 
local patent agent.  
An exhaustive list of these requirements can be found in the EPO's publication "National law relating to 
the  EPC",  14th  edition,  June  2009,  pages  99-135.  See  also  http://www.epo.org/patents/law/legal-
texts/html/natlaw/en/iv/index.htm.  
Source: Interviews with patent agents and Roland Berger Study.  
See "National law relating to the EPC", 14th edition. Further complexity is added by national provisions 
on (i) additional page fees for longer patents and (ii) special fee schedules where the patent proprietor 
files an electronic version of the patent. 

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Figure 2 – Publication fee charged in EU Member States for a typical European patent 

Publication Fees

400

350

300

250

200

150

100

50

0

FI

ES

AT

SE

EL

HU

MT

DK

PT

SK

RO

SI

CY

CZ

PL

LV

LT

EE

IE

BG

NL

BE

DE

FR

IT

LU

UK

Source: National Law relating to the EPC, 14th Edition 

Figure  3  below  illustrates  the  total  validation  costs  (including  direct  translation  costs  and 
estimated related costs such as patent agent fees and publication fees) for a European patent of 
typical  length  (granted  by  the  EPO  in  German),  in  respectively  three,  six  and  thirteen  EU 
Member States: 

–  if the patent proprietor wishes protection in only three Member States – Germany, France 
and UK (which are parties to the London Agreement) – no validation requirements apply 
and no costs are incurred;  

–  if  protection  is  desired  in  six  Member  States  (which  are  all  parties  to  the  London 

Agreement), costs amount to 3 000 EUR; 

–  if protection is desired in six Member States (of which three are not parties to the London 

Agreement), costs amount to more than 4 500 EUR; 

–  finally,  validation  costs  are  more  than  12  000  EUR  when  protection  in  thirteen  EU 

Member States is desired. 

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11 

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Figure 3 – Example of total validation costs (in EUR) of a European patent of typical length 
in a selection of EU Member States 

Validation Costs of a typical European Patent

s
t
s
o
C

14000

12000

10000

8000

6000

4000

2000

0

DE,FR,UK

DE,FR,UK +
DK, NL, SE

DE, FR, UK +
ES, IT, PT

DE, FR, UK+
DK, NL, SE +
ES, IT, PT, AT
+  BE, IT, LU

Source: own calculations 

It should be borne in mind that for a longer patent, (for example, in the field of biotechnology, 
where patents can extend to 200 pages) the validation costs for only 13 Member States may 
amount to more than 140 000 EUR. Moreover, an average length patent is estimated to cost 
between 22 000 and 26 000 EUR in validation costs for EU-wide coverage. 

Fragmentation due to low number of validations. A European patent is usually validated in 
only  a  few  countries  selected  by  the  patent  proprietor:  currently,  a  European  patent  is,  on 
average,  validated  in  only  five  EU  Member  States37.  The  number  of  validations  has  even 
decreased  over  the  last  15  years,  although  the  number  of  EPC  Contracting  States  has 
increased  from  17  (in  1995)  to  37  today38.  There  is  no  straightforward  explanation  for  this 
slight  decline  since  a  number  of  factors  affect  the  patenting  strategy  for  a  company  and 
decisions  are  taken  on  a  case-by-case  basis.  Possible  explanations  include  a  general  rise  in 
number  of  applications  and  granted  patents  (e.g.  about  78000  applications  were  received  at 
the EPO in 1995 compared to more than 146000 in 2008) resulting in larger company patent 
portfolios and therefore fewer designations in order not to increase the overall costs of their 
patent portfolio.  

Figure  4  below  shows  the  share  of  European  patents  that  were  validated  in  the  EPC 
Contracting States in 1995 and 2003. In 2003, 95% of all patents granted by the EPO were 

37 

38 

See,  for  example,  "Study  on  the  Cost  of  Patenting"  carried  out  by  Roland  Berger  Market  Research, 
August 2004. 
See "Economic cost-benefit analysis of the Community patent" – study by van Pottelsberghe / Danguy 
on behalf of the European Commission, on the basis of data provided by the EPO. 

EN 

12 

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validated in Germany, 80% were validated in France and 75% in the United Kingdom. For all 
other countries, the validation rate is below 40%39. 

Figure 4 – Share of EPO patents validated in EPC Contracting States 

The  decision  of  a  patent  proprietor  to  validate  a  European  patent  in  a  particular  country 
depends on several factors: high costs (arising from direct translation costs, publication fees, 
annual renewal fees) have a strong negative impact, but other factors such as a country's GDP, 
population, number of years of EPC membership, and distance to other countries also impact 
on the validation decision40. In practice, the European patent thus provides patent protection 
in  mainly  a  few  EU  Member  States.  This  has  far-reaching  consequences:  (i)  it  reduces  the 
commercial value of the patented invention; (ii) it impedes businesses' cross-border activities; 
(iii)  it  leaves  business  opportunities  unexploited.  Worse  still,  it  entails  a  fragmented  system 
for patent protection in the EU with negative effects on the functioning of the Internal Market; 
patent  right  "borders"  are  being  erected  around  individual  Member  States  because  the 
territorial  limits  of  patent  rights  are  left  intact.  Finally,  the  fragmentation  leads  to  reduced 
dissemination of technological information as the translations of patents into most of the EU 
languages are not available. 

Taking into account the number of validations each year across all EU Member States, it is 
estimated  that  between  205  and  230  million  EUR  is  spent  by  companies  on  translations, 
validations  and  professional  charges.  Moreover,  it  should  be  borne  in  mind  that  this  overall 
figure covers European patents, validated on average in only 5 Member States. If all patents 
were validated in all EU Member States, this figure would be many times higher. 

On the other hand, the EU patent would provide protection traversing the internal borders of 
the EU, embracing and covering the entire Internal Market. The EU patent – by establishing a 
single  property  right  border  around  the  Internal  Market  –  would  thus  avoid  the  creation  of 
internal  patent  right  borders  along  the  national  borders  of  the  EU  Member  States.  This  has 
relevance to the principle of free movement of goods in the Internal Market.  

39 

40 

Harhoff / Hoisl / Reichl / van Pottelsberghe, 2009, "Patent validation at the country level: the role of 
fees  and  translation  costs",  Research  Policy,  November  2009.  Italy  is  not  included  due  to  the  lack  of 
information  on  validations  in  Italy.  Broad  estimates  by  the  EPO  suggest  that  30–40%  of  the  patents 
granted by the EPO are generally validated in Italy. 
Obviously, these latter factors are constant over time and cannot serve as leverage for policy options. 

EN 

13 

   EN 

 
                                                 
As explained above, the London Agreement lowers the costs relating to translations for patent 
proprietors,  but  it  does  not  overcome  the  fragmentation  caused  by  the  national  patent  right 
borders  created  by  the  European  patent  after  grant.  On  the  contrary,  by  cutting  validation 
costs entirely in four Member States (DE, FR, LU and the UK) but only reducing costs in six 
other Member States where translations of the claims still have to be supplied (DK, LT, LV, 
NL, SE, SI) – while validation requirements are left untouched in seventeen Member States – 
the  London  Agreement  actually  risks  reinforcing  patent  proprietors'  selective  validation 
practices.  Patent  right  borders  will  therefore  be  left  intact  within  the  EU.  This  has  major 
undesirable effects on the functioning of the Internal Market:  

•  Among other factors in commercial decisions, the concentration of patent protection in a 
few  major  Member  States  (often  those  which  have  ratified  or  acceded  to  the  London 
Agreement)  risks  leading  to  a  concentration  of  investments  in  R&D  and  technology 
transfers  in  these  States.  In  smaller  and  new  Member  States  (often  those  which  have  not 
ratified or acceded to the London Agreement) continuous low patenting activity is likely to 
have a knock-on effect on R&D activity and innovation, making it particularly difficult for 
SMEs in these States to grow and exploit the opportunities of the Internal Market. 

•  In  relation  to  the  enforcement  of  patent  rights,  if  goods  enter  the  EU  through  a  Member 
State where a patent is not in force, the patent proprietor may not rely on the EU Customs 
Code41 to withhold the goods suspected to be in breach of the patent. The goods have to be 
released by the customs authorities and thus allowed to circulate freely within the Internal 
Market,  possibly  also  including  the  Member  States  where  the  patent  is  in  force.  The 
identification of the goods in breach of a patent becomes very complicated at this stage. 

Access  to  technological  information.  A  further  shortcoming  of  the  current  translation 
arrangements for European patents is the practical difficulties in accessing the translations at 
some  national  patent  offices.  While  some  offices  do  make  the  translations  available 
electronically42, others only provide access to paper copies that can be consulted in the public 
reading  rooms  of  the  national  patent  offices,  or  copied  at  the  expense  of  interested  third 
parties.  The  number  of  translations  consulted  in  Member  States  where  translations  are  only 
available in printed form is extremely low – less than 2% according to estimates43.  

It must also be kept in mind that the publication of the translations takes place very late in the 
"life  cycle"  of  the  patent  –  often  not  before  five  years  after  the  date  of  filing  of  the  patent 
application.  Yet  innovative  businesses  must  keep  abreast  of  the  latest  technological 
developments in their field by monitoring new patent applications filed by their competitors – 
which  are  published  already  eighteen  months  after  the  date  of  filing  (in  the  language  of 
proceedings before the EPO) – not by reading the translations supplied several years later. In 
practice,  no  meaningful  "veille  technologique"  can  take  place  only  on  the  basis  of  the 
translations filed at the national patent offices after the patent has been granted.  

41 

42 

43 

Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code 
(OJ L 302, 19.10.1992, p. 1), as amended. 
CDs and DVDs are still used for storing and copying information but their use will in future be limited 
to  static  data  collections.  The  introduction  of  online  publication  servers  constitutes  the  major  shift 
which will shape patent information policy in the 21st century, radically reducing the interval between 
publication and distribution of information. 
Response  to  Written  Question  no  88618  of  14.3.2006  (JO  Question  écrites,  Assemblée  nationale,  25, 
20.06.2006,  p.6598).  See  also  Rapport  de  la  Mission  de  Concertation  sur  le  Brevet  Européen  "Les 
enjeux de l'Accord de Londres" (Rapport Vianès). 

EN 

14 

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The problems of the current patent system in Europe are summarised in Figure 5 below. 

Figure 5 – Problems of the current patenting system 

S cop e  of the  e xe rcise  

Direct tra nsla tion  costs 

R ela te d costs (i.e., pu blica tion 
costs  an d profe ssiona l 
serv ice s) 

O ut of  th e  scope  
of the  e xe rcise 

Se a rch, 
e xa m ina tion 
a nd  gra nt fe e s 
f or Europe a n 
a nd  EU  pate nts 

H igh  costs  of  pa ten ting 

C om preh e nsive  
pa te nt prote ction 
ina cce ssible  to 
m an y  Europea n  
in nova tors 

L ow  v alida tion  rate  
of Eu rope a n 
pa te nts in  Me m ber 
Sta te s 

Fe w   tra nsla tions 
a v ai la bl e  into a ll 
EU  la ngua ge s  / 
Fe w   tra nsla tions 
con su lte d 

N e ga tive  influ en ce 
on  inn ov a tion a nd 
com pe titiv e ne ss  of  
Eu rop ea n 
bu sine sses g loba ll y 

F ra gm en te d S ingle 
M a rke t a nd 
diff iculties in  cross-
borde r 
e nforce me nt 

Re duce d 
disse m in ation  of 
te chnica l 
inf orm ation  

As  this  impact  assessment  deals  only  with  the  translation  arrangements  for  the  EU  patent, 
other  costs  of  obtaining  and  maintaining  a  patent,  such  as  pre-grant  fees  for  the  EU  patent 
(e.g.  search,  examination,  grant  fees)  and  renewal  fees,  fall  outside  the  scope  of  this 
exercise44. 

2.3. 

Subsidiarity 

The creation of European intellectual property rights to provide uniform protection throughout 
the EU and associated language arrangements is provided for by Article 118 TFEU. Only the 
EU is entitled to act to create uniform intellectual property rights in the EU.  

The problems outlined above can only be addressed by a single EU-wide patent that does not 
require national validations and that has a drastically reduced translation regime compared to 
the current European patent. 

44 

This  is  addressed  in  detail  in  the  studies  carried  out  for  the  European  Commission  by  Bruno  van 
Pottelsberghe: "Economic cost-benefit analysis of the Community patent" of 7 April 2009 and "Patent 
fees for a sustainable EU patent system" (forthcoming). 

EN 

15 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3. 

OBJECTIVES 

The Europe 2020 strategy adopted by the Commission on 3 March 201045 puts forward three 
mutually-reinforcing  priorities:  smart,  sustainable  and  inclusive  growth.  The  first  of  these 
requires strengthening knowledge and innovation as drivers for future growth. A key element 
of this is improving the framework conditions for businesses to innovate, and the Europe 2020 
strategy expressly mentions the creation of a single EU patent and a specialised patent court. 
The  EU  patent  will  provide  for  uniform  protection  of  patent  rights  in  the  Internal  Market, 
thereby  creating  more  favourable  conditions  for  investment  in  R&D,  particularly  in  regions 
with  below  average  innovation  activity46.  This  should  therefore  facilitate  reaching  the  3% 
target of GDP invested in R&D affirmed by Europe 2020. 

As consultations have shown, the creation of the EU patent should not be a goal in itself. The 
EU  patent  needs  to  be  accessible  for  all  European  businesses,  including  SMEs.  This  will 
require translation arrangements which are cost-effective, simplified and legally secure. 

Cost-effective. The translation arrangements need to avoid high costs to make the EU patent 
attractive for innovative businesses. In particular, the EU patent system must be competitive 
with the patent systems in other major economies of the world. 

Simplified.  The  translation  arrangements  must  consider  the  impact  on  accessibility  of  the 
patent  system  to  innovators.  The  fundamental  objective  of  the  patent  system  –  which  is  to 
encourage innovation through offering an exclusive right (limited in time) in exchange for full 
disclosure  of  the  invention  for  the  dissemination  of  technological  information  in  different 
languages – must be balanced against costs. 

Legally secure. The translation arrangements must ensure legal certainty. Only the text in a 
language  in  which  an  EU  patent  is  granted  should  have  legal  value  in  order  to  avoid  legal 
risks related to errors in translations. Translations, especially machine translations should not 
have any legal effect and be for information purposes only. 

These objectives are summarised in Figure 6 below. 

45 
46 

Europe 2020 "A strategy for smart, sustainable and inclusive growth" - COM(2010) 2020. 
http://www.proinno-europe.eu/sites/default/files/newsroom/2010/02/I981-DG%20ENTR-
Report%20RIS%20(Web).pdf.  

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16 

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Figure 6 – Hierarchy of objectives for translation arrangements for the EU patent 

Improvement of Framework 
Conditions for Innovation 

Objectives level 

General 

Single EU patent and 
Specialised Patent Court 

Specific 

Cost-effective, simplified and legally secure 
translation arrangements for the EU patent 

Operational 

4. 

POLICY OPTIONS AND ANALYSIS OF THEIR IMPACTS 

4.1. 

Introduction 

All policy options chosen and analysed are based on the following principles: 

1) Central filing of translations and electronic publication. Any translation to be filed at 
the time of grant shall be filed centrally at the EPO, which shall be in charge of the electronic 
publication of the EU patent in the language of proceedings and any translation of the claims. 
No requirement relating to professional representation going beyond Article 133 EPC shall be 
imposed on patent proprietors for filing the translations.  

The  implementation  of  this  principle  alone  will  entail  a  considerable  improvement  as 
compared to the current situation (in terms of cost reduction and simplification). It conforms 
to the Commission's overall administrative burden reduction exercise aiming at freeing up and 
redirecting  business  resources  in  order  to  enhance  the  competitiveness  of  innovative 
businesses in the Member States. 

2)  Automatic  machine  translations.  The  development  of  automatic  machine  translation 
(AMT) programs for patent documents is essential in order to improve the dissemination of 
technological information for researchers throughout the EU, as well as giving the EU patent 
a  truly  multilingual  character.  A  project  in  this  field  has  been  underway  at  the  EPO  using 
English as pivot language to translate between German, French, Spanish, Italian, Swedish and 
Portuguese. Other languages are in preparation. The Commission along with the EPO is also 
supporting  a  project  for  machine  translations  (Patent  Language  Translations  Online, 
PLuTO)47,  which 
the  basis  of  patent 

translation  software  on 

involves  developing 

47 

Information available at http://cordis.europa.eu/home_en.html.  

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17 

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documentation  covering  all  official  languages  of  the  EU  Member  States  over  the  next  five 
years.  The  creation  of  the  EU  patent  would  necessitate  the  acceleration  of  work  and  the 
rolling out of a full programme as quickly as possible. Automatic machine translations would 
be available free of charge for information purposes only and would have no legal effect48.  

The availability of a fully-fledged AMT system promises significant improvements for users 
monitoring the content of new patent applications in foreign languages. As mentioned above, 
innovative  businesses  need  to  keep  abreast  of  the  latest  technological  developments  in  their 
field by monitoring new patent applications filed by their competitors – which are published 
18  months  after  the  date  of  filing  but  only  in  the  language  of  proceedings  before  the  EPO. 
AMT will enable instant access to these applications for all users. 

3) Full translation in case of dispute. In the case of a dispute relating to an EU patent, the 
patent proprietor shall provide, at his/her expense and at the request of an alleged infringer, a 
full  translation  of  the  patent  into  an  official  language  of  the  Member  State  in  which  the 
alleged infringement took place or in which the alleged infringer is domiciled. It is estimated 
that less than 1% of all patents become subject to litigation during their term. 

4) Reimbursement of costs. An application for an EU patent may be filed in any language49. 
Where the language of filing is not an official EPO language, a translation of the application 
must be provided, within a prescribed time period, so that the application can be processed by 
the EPO. If a natural or legal person having his/her residence or principal place of business 
within  a  Member  State  that  does  not  have  as  an  official  language  among  the  language  of 
proceedings before the EPO files an application for an EU patent in the official language of 
his/her  Member  State,  the  costs  of  translation  shall  be  borne  by  the  system.  This  would  be 
established  under  the  implementing  provisions  set  by  a  Select  Committee  of  the 
Administrative Council of the EPO composed of representatives from the EU and all Member 
States. Reimbursement of costs would apply in the same way across all options investigated in 
this  impact  assessment  and  would  be  covered  by  fees  collected  after  EU  patents. 
Implementation of this system is therefore not intended to impact on the EU budget. 

The following options will be explored: 

Base-line scenario – The Commission does not propose any translation arrangements for the 
EU patent. 

Option 1 – EU patents are processed, granted and published in English. 

Option  2  –  EU  patents  are  processed,  granted  and  published  in  one  of  the  three  working 
languages of the EPO; the claims are translated into the other two working languages of the 
EPO. 

Option  3  –  EU  patents  are  processed,  granted  and  published  in  one  of  the  three  working 
languages  of  the  EPO;  the  claims  are  translated  into  the  four  other  most  commonly  spoken 
languages in the EU. 

48 

49 

An  automatic  machine  translation  can  be  requested  free  of  charge  via  the  esp@cenet  portal 
http://ep.espacenet.com/. Gateway can be the EPO, the Commission or any national patent office of the 
Member  States,  in  the  respective  language.  Once  a  relevant  patent  document  has  been  identified,  the 
user must select the target language for the translation and click on the button "Translate this text". The 
translation will be generated within 30 to 60 seconds. 
This is prescribed by Article 5 of the Patent law Treaty 2000. See also Article 14(2) EPC. 

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18 

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Option  4  –  EU  patents  are  processed,  granted  and  published  in  one  of  the  three  working 
languages  of  the  EPO;  the  claims  are  translated  into  the  other  official  languages  of  the  EU 
Member States. 

The  following  analysis  of  the  policy  options  concentrates  on  the  main  economic  impacts 
relating  to  the  scope  of  this  exercise.  The  analysis  will  assess  the  economic  impacts  of  the 
different  policy  options  on  the  various  users  of  the  patent  system,  namely  natural  or  legal 
persons  applying  for  patents  in  Europe.  In  particular,  we  assess  impacts  on  the  following 
groups: 

–  The analysis separately assesses impacts on the users of the patent system in general and 

SMEs in particular.  

–  Impact on European innovators in general whose inventions may or may not be protected 

by patents is also analysed.  

–  Another  group  affected  are  the  patent  information  users,  namely  those  following 
technological  developments  by  means  of  available  patent  information  (including  those 
users whose technology may potentially infringe existing patents). 

–  Finally, we also include an assessment of social impacts on professional services related to 
translations,  including  services  by  patent  translators  and  patent  attorneys  mainly  dealing 
with translations. 

Considering  the  narrow  scope  of  the  proposal,  impacts  are  focused  on  the  effects  of  the 
translation arrangements for the EU patent. 

4.2. 

Base-line  scenario  –  The  Commission  does  not  propose  any  translation 
arrangements for the EU patent 

4.2.1.  Description 

The  base-line  scenario  is  that  no  action  is  taken:  the  Commission  does  not  propose  any 
regulation establishing language arrangements for the EU patent. 

The base-line scenario could see further Member States acceding to the London Agreement. 
Accession  is,  however,  not  only  optional  but  also  a  lengthy  and  complex  process  as 
parliamentary  approval  procedures  must  take  place  in  each  country.  Accession  by  all 
remaining  17  Member  States  is  unlikely  to  happen,  even  in  the  long  run.  There  are  several 
Member States that have not expressed any intention to accede to the London Agreement. 

4.2.2.  Analysis 

In order for the EU patent to come into existence, the Council must adopt a Regulation on the 
translation  arrangements  for  the  EU  patent,  on  a  proposal  by  the  Commission.  If  the 
Commission does not present a proposal on translation arrangements, the EU patent will not 
come into existence. This will amount to a de facto withdrawal of the Commission proposal 
of 1 August 2000. This is contradictory to the Conclusions and General Approach adopted by 
the Council on 4 December 2009 and to the Commission's recent Europe 2020 Strategy which 
highlights the creation of the EU patent in the "Innovation Union" Flagship Initiative. 

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19 

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The  base-line  scenario  further  implies  renouncing  on  addressing  the  shortcomings  of  the 
current  European  patent  system  with  its  high  costs  caused  by  translation  and  validation 
requirements, as well as its negative impact on the functioning of the Internal Market due to 
fragmentation resulting from patent proprietors' validation practices.  

As  far  as  further  potential  accessions  to  the  London  Agreement  are  concerned,  it  should  be 
kept in mind that, among the seventeen Member States which are not parties to the London 
Agreement, only four (AT, BE, IE and MT) have an official language in common with one of 
the working languages of the EPO. The other thirteen may require a translation of the claims 
into their national language. It follows that, even if it is assumed that all EU Member States 
would accede to the London Agreement in the long run, the eventual language arrangement 
for  the  European  patent  would  resemble  the  language  arrangement  agreed  in  the  2003 
common  political  approach  should  the  patent  proprietor  seek  protection  in  all  EU  Member 
States. As mentioned, this approach was rejected by all users of the patent system in Europe. 
Worse still, the London Agreement fails to address the requirement that translations must be 
filed at the national patent offices, with the associated costs and complexity. 

Beyond  a  slight  drop  in  translation  costs  resulting  from  further  accessions  to  the  London 
Agreement  and  further  development  of  electronic  machine  translation  programs,  this  option 
would provide no additional benefit to users of the patent system. 

Table 1 – Expected impact of the baseline scenario 

Policy 
Option 

Users of patent 
system 

Innovators in 
general 

Patent 
information 
users 

Professional services 
related to 
translations 

Overall  SMEs 

Baseline 
scenario 

0 

0 

0 

0 

0 

Magnitude of impact compared with the base-line scenario: ++ strongly positive; + positive, -- strongly negative; 
- negative. 

4.3. 

Option 1 – EU patent processed, granted and published in English 

4.3.1.  Description 

In any proceedings relating to the EU patent before the EPO, English shall be the language of 
proceedings50.  The  EU  patent  shall  be  granted  in  that  language,  and  no  further  translation 
shall be required. The EU patent (claims, description and any drawing) shall be published on 
the European publication server in English only. 

50 

This would be without prejudice to the applicant's right to file the application in any language (Article 5 
Patent Law Treaty; Article 14(2) EPC). A translation of the application into English would have to be 
filed within a prescribed time period. 

EN 

20 

   EN 

 
                                                 
4.3.2.  Analysis 

Overall,  as  compared  to  the  base-line  scenario  where  an  EU  patent  would  not  become 
available, this option could have a positive impact on users of the patent system in Europe. As 
no translation would be required any more – neither at the time of grant, nor after grant – this 
Option  could  result  in  significant  cost  advantages  and  simplification  if  only  the  translation 
requirements  are  considered.  Particular  benefits  would  accrue  to  users  that  currently  file 
European patent applications in English in any event as the requirement to translate the claims 
into French and German at the time of grant would disappear. However, an important proviso 
needs  to  be  made  as  Option  1  would  have  a  negative  impact  on  many  European  users,  in 
particular  European  SMEs  that  currently  file  European  patent  applications  in  French  and 
German.  

The possibility to apply and have applications processed in French and German is widely used 
by  applicants  originating  from  Europe:  around  48%  of  all  applications  originating  from 
Europe are filed in French or German at the EPO51.  

Figure 7– Filing language of European patent applications (European applicants) 

Filing language of EP applications 2009 (European 
applicants)

English German

French Others

French
9%

Others
7%

German
39%

English
45%

Source: internal EPO data 

The vast majority of these applications are filed by French and German applicants, but also 
other  European  applicants  –  from  Austria,  Belgium,  Italy,  Luxembourg,  Poland  –  file  and 
have their applications processed in French and German at the EPO. 

Option 1 would result in a profound change to the tried and tested three-language regime of 
the  EPO.  The  flexibility  of  the  existing  language  regime  –  which  allows  a  choice  between 
English, French and German as the language of proceedings before the EPO – would not be 
available  for  EU  patent  applications.  This  would  impact  on  users  currently  filing  in  French 
and German. During proceedings before the EPO, all communication with the EPO – be it in 
writing  or  orally  –  would  need  to  take  place  in  English.  In  case  of  opposition  proceedings, 
companies would incur additional translation costs as all relevant documents would have to be 
translated into English. Oral proceedings at the EPO would likewise be held in English only. 

51 

Internal EPO data, 2009. 

EN 

21 

   EN 

 
                                                 
As  a  consequence,  companies  currently  using  French  or  German  as  the  language  of 
proceedings before the EPO would have to make significant practice changes for processing 
EU  patent  applications  in  English.  In  addition,  representatives  of  these  applicants  would  be 
required to undergo intensive retraining to act before the EPO in English, including the filing 
of  amendments  during  the  examination  process.  This  would  result  in  significant  additional 
costs and complexities and loss of flexibility for users currently using French or German as is 
the case for about half of the patents granted to European companies. By introducing such a 
change  compared  to  the  current  system,  the  EU  patent  may  be  less  attractive  to  companies 
currently among the most intensive users of the patent system. The EU patent may therefore 
not  bring  the  expected  benefits  as  its  use  could  be  low  for  companies  currently  not  using 
English. 

Other groups affected, including patent information users who would only have EU patents in 
a  single  language  and  providers  of  professional  services  related  to  translations,  would  be 
negatively  impacted.  Only  translators  with  English  as  a  mother  tongue  would  be  positively 
affected  as  all  applications  for  EU  patents  as  well  as  all  documents  relating  to  proceedings 
before the EPO would need to be translated into English. 

Table 2 – Expected impact of Option 1 

Policy 
Option 

Users of patent 
system 

Innovators in 
general 

Patent 
information 
users 

Professional services 
related to translations 

Overall 

SMEs 

Option 1 

+ 

- 

+ 

- 

-- 

Magnitude of impact compared with the base-line scenario: ++ strongly positive; + positive, -- strongly negative; 
- negative. 

Table 3: Validation Costs under Option 1 – Cost Savings Compared to Baseline Scenario 

(for 
in  EUR 
Costs 
coverage  in  27  Member 
States) 

in  EUR  of 
Costs 
baseline  scenario  (for 
patent 
average 
covering 
5 
Member States) 

only 

Costs  in  EUR  of 
patent  covering  all 
States 
Member 
under 
baseline 
scenario 

Validation 
per patent 

costs 

Nil  (excluding  costs  for 
applicants  filing  in  DE 
and  FR  changing  work 

3400 

24 000 

EN 

22 

   EN 

 
 
Application 
and 
validation costs per 
patent 

Total  Validation 
if  60000 
Costs, 
are 
patents 
validated each year  

practices to EN) 

550052 

8900 

29500 

204 million 

1.44 billion 

102  million  (50%  EU 
patents) 

51  million  (75%  EU 
patents) 

Total  Application 
Validation 
and 
if  60000 
Costs, 
patents 
are 
validated each year  

432  million  (50%  EU 
patents) 

381  million  (75%  EU 
patents) 

534 million 

1.77 billion 

4.4. 

Option  2  –  EU  patent  processed,  granted  and  published  in  one  of  the  three 
working  languages  of  the  EPO;  translation  of  the  claims  into  the  other  two 
working languages of the EPO 

4.4.1.  Description  

This option corresponds to the current regime applicable under the EPC: 

•  in any proceedings relating to the EU patent application before the EPO, one of the three 

working languages of the EPO shall be the language of proceedings; 

•  the EU patent shall be granted in the language of proceedings; 

•  at the time when the EU patent is granted, the patent proprietor shall supply to the EPO a 
translation  of  the  claims  into  the  two  working  languages  of  the  EPO  other  than  the 
language of proceedings. 

The following shall be published on the European publication server: 

•  the EU patent (claim, description and any drawing) in the language of proceedings, and 

•  the  translation  of  the  claims  in  the  two  working  languages  of  the  EPO  other  than  the 

language of proceedings. 

4.4.2.  Analysis 

Overall,  as  compared  to  the  base-line  scenario  where  an  EU  patent  would  not  become 
available, this option would have a positive impact on users of the patent system in Europe. 
By  doing  away  with  all  translations  after  grant  and  associated  validation  requirements,  this 

52 

Covers application, search, examination, grant and renewal fees up to an including the 5th year of the 
patent. 

EN 

23 

   EN 

 
                                                 
option  results  in  significant  cost  reductions  and  simplification  for  all  users  of  the  patent 
system.  

The translation costs under this option would amount to approximately 680 EUR per patent53. 
This  corresponds  to  the  current  average  cost  of  the  translation  of  the  claims  into  the  two 
working languages of the EPO other than the language of proceedings (Article 14(6) EPC).  

Option  2  corresponds  to  what  the  Commission  suggested  in  its  initial  proposal  for  a 
Regulation on the Community patent with respect to manual translations54. This proposal did 
not find sufficient support in the Council prior to adoption of the common political approach 
of 2003. Subsequently, the availability of automatic machine translations in all EU languages 
has been added as a new element. On this basis, a large majority of Member States would be 
prepared to consider not requiring manual translation of claims. 

In contrast with Option 1, it should be emphasised that Option 2 would not affect the language 
regime  of  the  EPC  and  thus  would  not  entail  any  change  for  applicants;  the  translation 
requirement at the time of grant would be kept at the minimum required today for a European 
patent. 

This  option  would  result  in  benefits  for  most  groups  affected  by  the  measure,  including  all 
users  of  the  patent  system  (as  well  as  SMEs),  innovators  in  general  and  patent  information 
users.  Only  providers  of  professional  services  related  to  translations  would  be  negatively 
affected as translations requirements after grant and associated costs would disappear. 

Table 4 – Expected impact of Option 2 

Policy 
Option 

Users of patent 
system 

Innovators in 
general 

Patent 
information 
users 

Professional services 
related to translations 

Overall 

SMEs 

Option 2 

++ 

++ 

++ 

+ 

-- 

Magnitude of impact compared with the base-line scenario: ++ strongly positive; + positive, -- strongly negative; 
- negative 

Table 5: Validation Costs under Option 2 – Cost Savings Compared to Baseline Scenario 

(for 
in  EUR 
Costs 
coverage  in  27  Member 
States) 

of 

baseline 
Costs 
scenario  (for  average 
patent covering only 5 
Member States) 

of 

Costs 
covering 
Member 
under 
scenario 

in 

patent 
27 
States 
baseline 

Validation 
per patent 

costs 

680 

Application 

and  6180 

3400 

8900 

24 000 

29500 

53 
54 

4 pages of claims x 85 EUR/page x 2 languages = 680 EUR. 
Proposal for a Council Regulation on the Community patent - COM(2000) 412. 

EN 

24 

   EN 

 
                                                 
validation costs per 
patent 

Total  Validation 
Costs, 
if  60000 
are 
patents 
validated each year  

122,4  million  (50%  EU 
patents) 

81,6  million  (75%  EU 
patents) 

Total  Application 
Validation 
and 
if  60000 
Costs, 
are 
patents 
validated each year  

452,4  million  (50%  EU 
patents) 

411,6  million  (75%  EU 
patents) 

204 million 

1.44 billion 

534 million 

1.77 billion 

4.5. 

Option  3  –  EU  patent  processed,  granted  and  published  in  one  of  the  three 
working  languages  of  the  EPO;  translation  of  the  claims  into  the  four  other 
most  commonly  spoken  languages  in  the  EU;  one  translation  of  the  claims  (at 
the choice of the patent proprietor) shall have limited legal effect 

4.5.1.  Description 

This  option  follows,  for  the  granting  procedure,  the  current  regime  applicable  to  European 
patent applications and adds at the time when the EU patent is granted, the requirement that 
the claims be translated into the four other most commonly spoken EU languages: 

•  in  any  proceedings  relating  to  the  EU  patent  before  the  EPO,  one  of  the  three  working 

languages of the EPO shall be the language of proceedings; 

•  the EU patent shall be granted in the language of proceedings; 

•  at the time when the EU patent is granted, the patent proprietor shall supply a translation of 
the claims into the four other most commonly spoken EU languages (that is, two working 
languages  of  the  EPO  other  than  the  language  of  proceedings  and  the  two  other  most 
spoken languages, namely Italian and Spanish).  

The following shall be published on the European publication server: 

•  the EU patent (claim, description and any drawing) in the language of proceedings, and 

•  the translation of the claims in the four most commonly spoken languages of the EU. 

4.5.2.  Analysis 

This option builds on Option 2 analysed above but adds two additional translations of claims 
into the most spoken languages in the EU. Compared to the base-line scenario where an EU 
patent  would  not  become  available,  Option  3  (equally  to  Option  2)  would  generally  have  a 
positive  impact  on  users  of  the  patent  system  in  Europe.  It  would  result  in  significant 
simplification of the system as well as cost reductions for all users. 

EN 

25 

   EN 

 
Compared to Option 2, Option 3 would reinforce the multilingual character of the EU patent. 
However, the direct translation costs under this option would amount to approximately 1 360 
EUR per patent55 and would be twice as much as under Option 2. By contrast, compared to 
Option  4,  which  would  require  at  least  twenty  translations,  Option  3  would  still  be  more 
affordable to all users of the patent system. Patent information users would also benefit from 
the  publication  by  the  EPO  of  the  claims  in  the  most  spoken  EU  languages.  Compared  to 
Option  4,  professional  services  providers  would  experience  a  negative  impact,  but  less  than 
under Option 2 (as translations would be needed into the four most widely spoken languages, 
but would not be required for the other EU languages). 

Table 6 – Expected impact of Option 3 

Policy 
Option 

Users of patent 
system 

Innovators in 
general 

Patent 
information 
users 

Professional services 
related to translations 

Overall 

SMEs 

Option 3 

++ 

+ 

++ 

++ 

- 

Magnitude of impact compared with the base-line scenario: ++ strongly positive; + positive, -- strongly negative; 
- negative 

Table 7: Validation Costs under Option 3 – Cost Savings Compared to Baseline Scenario 

Costs 
(for 
in  EUR 
coverage  in  27  Member 
States) 

of 

Costs 
baseline 
scenario  (for  average 
patent covering only 5 
Member States) 

of 

Costs 
covering 
Member 
under 
scenario 

in 

patent 
27 
States 
baseline 

Validation 
per patent 

costs 

1360 

Application 
and 
validation costs per 
patent 

6860 

Total  Validation 
if  60000 
Costs, 
patents 
are 
validated each year  

144,8  million  (50%  EU 
patents) 

112,2  million  (75%  EU 
patents) 

Total  Application 
Validation 
and 
if  60000 
Costs, 
patents 
are 
validated each year  

474,8  million  (50%  EU 
patents) 

444,2  million  (75%  EU 
patents) 

3400 

8900 

24 000 

29500 

204 million 

1.44 billion 

534 million 

1.77 billion 

55 

4 languages x 4 pages of claims x 85 EUR = 1360 EUR. 

EN 

26 

   EN 

 
                                                 
4.6. 

Option  4  –  EU  patent  processed,  granted  and  published  in  one  of  the  three 
working languages of the EPO; translation of the claims into the other official 
languages of the EU Member States  

4.6.1.  Description 

This option corresponds to the common political approach of 3 March 2003: 

•  for  the  pre-grant  phase,  the  current  regime  applicable  to  European  patent  applications 
would apply: in any proceedings relating to the EU patent before the EPO, one of the three 
working languages of the EPO shall be the language of proceedings; 

•  the EU patent shall be granted in the language of proceedings; 

•  at the time when the EU patent is granted, the patent proprietor shall supply a translation of 
the claims into the official languages of the EU Member States other than the language of 
proceedings  (Bulgarian,  Czech,  Danish,  Dutch,  Estonian,  Finnish,  Greek,  Hungarian, 
Italian,  Latvian,  Lithuanian,  Polish,  Portuguese,  Romanian,  Slovak,  Slovenian,  Spanish, 
Swedish  as  well  as  the  two  working  languages  of  the  EPO  other  than  the  language  of 
proceedings)56. 

The following shall be published on the European publication server: 

•  the EU patent (claims, description and any drawing) in the language of proceedings, and 

•  the  translation  of  the  claims  in  the  above  twenty  official  languages  of  the  EU  Member 

States57. 

4.6.2.  Analysis 

Contrary  to  the  base-line  scenario,  this  option  would  make  the  EU  patent  available,  but  it 
would result in high translation costs. The benefits of the EU patent as a single EU title would 
thus  be  counter-balanced  by  the  losses  resulting  from  high  translation  costs.  Although  only 
the translation of claims and not the whole patent would be required, such translations would 
still be needed into twenty official languages in the EU Member States.  

Translation costs under this option would amount to 6 800 EUR per patent.  

Stakeholders  have  unequivocally  rejected  the  Council's  common  political  approach  of  3 
March 2003 due to the unsatisfactory translation arrangements for the Community patent. The 
view of users, in particular SMEs, is clear – the EU patent would be too expensive for them. 
This is supported by the calculations in Table 9 showing that the EU patent under this option 
would have higher translation costs than the current average European patent. 

56 

57 

As Ireland and Malta do not currently require a translation of the European patent into respectively Irish 
and Maltese, it is assumed that they will not require a translation of the claims of the EU patent into 
their languages. 
The  2  working  languages  of  the  EPO  other  than  the  language  of  proceedings  and  18  other  official 
languages of the EU Member States. 

EN 

27 

   EN 

 
                                                 
Compliance with such translation requirements is not only very costly for the users, but is also 
very  complex.  A  fixed  time  period  would  need  to  be  set  for  the  submission  of  such 
translations since only when all translations would have been filed could the EU patent take 
effect.  Currently  the  EPC  foresees  four  months  for  the  submission  of  two  translations  of 
claims. It is clear that the translations should be provided as quickly as possible in order to 
fulfil their function for the dissemination of technology. However, twenty translations would 
require  a  longer  period  considering  as  well  that  many  of  the  languages  are  relatively 
uncommon  and  the  translation  resources  are  limited.  Users  would  be  confronted  with  the 
management  of  these  numerous  translations,  which  would  add  additional  costs  and  would 
make the EU patent even less attractive. Furthermore, decisions affecting the unitary character 
of the EU patent would have to be made, for instance for the situation where a translation into 
one of the EU official languages is not filed. 

Presuming that the translations would be available very early (which, as explained, would be 
very burdensome for the users), patent information would certainly be more easily accessible 
in  more  European  languages.  Presuming  that  the  EU  patent  would  be  at  all  used  in  case  of 
such  high  translation  costs,  providers  of  professional  services  related  to  translations  would 
also  benefit,  although  this  could  raise  questions  over  whether  there  would  be  enough 
specialised patent translators into certain languages. 

Table 8 – Expected impact of Option 4 

Policy 
Option 

Users of patent 
system 

Innovators in 
general 

Patent 
information 
users 

Professional services 
related to translations 

Overall 

SMEs 

Option 4 

-- 

-- 

- 

+ 

++ 

Magnitude of impact compared with the base-line scenario: ++ strongly positive; + positive, -- strongly negative; 
- negative 

Table 9: Validation Costs under Option 4 – Cost Savings Compared to Baseline Scenario 

Costs 
(for 
in  EUR 
coverage  in  27  Member 
States) 

of 

Costs 
baseline 
scenario  (for  average 
patent covering only 5 
Member States) 

of 

Costs 
covering 
Member 
under 
scenario 

in 

patent 
27 
States 
baseline 

Validation 
per patent 

costs 

6800 

and 
Application 
validation costs per 
patent 

12400 

3400 

8900 

24 000 

29500 

Total  Validation 
if  60000 
Costs, 

306  million  (50%  EU 
patents) 

204 million 

1.44 billion 

EN 

28 

   EN 

 
 
patents 
are 
validated each year  

357  million  (75%  EU 
patents) 

Total  Application 
Validation 
and 
if  60000 
Costs, 
patents 
are 
validated each year  

636  million  (50%  EU 
patents) 

687  million  (75%  EU 
patents) 

534 million 

1.77 billion 

5. 

COMPARING THE OPTIONS 

Table 10 below provides a summary of expected impacts of the analysed options. 

Table 10 – Comparing the impacts of the options 

Policy 
Option 

Users of patent 
system 

Innovators in 
general 

Patent 
information 
users 

Professional 
services related to 
translations 

Overall  SMEs 

0 

0 

0 

+ 

++ 

++ 

-- 

- 

++ 

+ 

-- 

+ 

++ 

++ 

- 

Option 0 
(base-line 
scenario) 

Option 1 

Option 2 

Option 3 

Option 4 

0 

- 

+ 

++ 

+ 

0 

-- 

-- 

- 

++ 

Magnitude of impact compared with the base-line scenario: ++ strongly positive; + positive, -- strongly negative; 
- negative. 

The analysis of Option 1 has shown that although this option may seem as highly simplified 
and  cost-effective  at  first  glance,  it  would  result  in  difficulties  for  the  users  who  have 
accustomed themselves to working in either German or French. By removing the flexibility of 
the  current  system  enjoyed  by  many  EU  businesses,  Option  1  could  impact  on  the  global 
competitiveness  of  European  industry,  especially  for  SMEs.  The  limitation  to  only  one 
language is also inappropriate as it does not take into account the multilingual character of the 
future EU patent. 

Option 2 would therefore be more appropriate as it maintains the procedural linguistic regime 
of  the  successfully  functioning  single  pre-grant  system  provided  by  the  EPC.  Furthermore, 
this option is also cost-effective (minimum translation costs), simplified (similar to the current 
pre-grant stage with a drastically simplified post-grant stage) and legally secure.  

EN 

29 

   EN 

 
 
Option 3 is equally simplified and legally secure as Option 2, but results in translation costs 
per unit that are twice as high. As demonstrated by the analysis, the total savings would also 
be significantly higher under Option 2 than under Option 3.  

On the contrary, by requiring the translation of claims into all EU official languages, Option 4 
would put considerable financial costs and risks on the users of the system. It would thus be 
neither cost-effective, nor simplified, nor legally secure. 

Table 11 below ranks the options as regards the objective to be achieved.

EN 

30 

   EN 

Table 11 - Ranking the options 

Option 1  

Option 2  

Option 3  

Option 4 

Simplified 

Cost 
effective 

Legally 
secure 

+ 

+ 

++ 

++ 

++ 

++ 

++ 

+ 

++ 

- 

-- 

- 

Magnitude  of  impact  of  the  criteria  compared: ++  strongly  positive;  +  positive,  --  strongly 
negative; - negative;  

6. 

MONITORING AND EVALUATIONS 

The  creation  of  an  EU  patent  intends  to  improve  the  conditions  for  innovation  in  Europe. 
Innovation  activity  is  measured  by  INNO-Metrics,  comprising  the  European  Innovation 
Scoreboard  (EIS)  and  Eurobarometer.  Patenting  activity  is  one  element  used  in  measuring 
current innovation activity. In addition, while maintaining the target of investing 3% of GDP 
in R&D, the Europe 2020 Strategy commits to developing a new indicator to track innovation. 
This should take into account the creation of the EU patent and its take up between industrial 
sectors, businesses sizes and Member States. 

The EU patent intends to coexist alongside the European patent and national patent titles. The 
relative  patenting  levels  between  these  rights  should  therefore  be  monitored  to  ensure  that 
these  options  are  realistic  for  innovators  according  to  their  individual  needs.  This  can  be 
achieved  by  analysing  patenting  statistics  published  by  patent  offices  in  Europe  in  their 
Annual Reports. This  will  therefore  provide further evidence of the effectiveness of  the EU 
patent and the necessity for revision, either in the Regulation for the EU patent or associated 
instruments such as the fees, or for the Regulation concerning the translation arrangements.  

EN 

31 

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