Proposition de RÈGLEMENT DU CONSEIL mettant en œuvre la coopération renforcée dans le domaine de la création d'une protection par brevet unitaire, en ce qui concerne les modalités applicables en matière de traduction
Date: 2011-04-13
Institutions: European Commission
Subjects: European cooperation, European patent, approximation of laws, intellectual property, patent law, translation

EUROPEAN COMMISSION 

Brussels, 13.4.2011 
COM(2011) 216 final 

2011/0094 (CNS) 

Proposal for a 

COUNCIL REGULATION 

implementing enhanced cooperation in the area of the creation of unitary patent 
protection with regard to the applicable translation arrangements 

{COM(2011) 215 final} 
{SEC(2011) 482 final} 
{SEC(2011) 483 final}

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

History of the proposal 

In  the  European  Union  (EU),  patent  protection  currently  can  be  obtained  either  through  the 
national  patent  offices  of  the  Member  States,  which  grant  national  patents,  or  through  the 
European Patent Office (EPO) in the framework of the European Patent Convention (EPC)1. 
However, once a European patent is granted by the EPO, it must be validated in each Member 
State  where  protection  is  sought.  For  a  European  patent  to  be  validated  in  a  territory  of  a 
Member State, national law may inter alia require that the patent proprietor files a translation 
of the European patent into the official language of that Member State2. Therefore, the current 
patent system in the EU, in particular in terms of translation requirements, involves very high 
costs  and  complexity.  The  overall  cost  of  validation  of  an  average  European  patent  reaches 
12 500 EUR if validated only in 13 Member States and over 32 000 EUR if validated in the 
whole EU. It is estimated that the actual validation costs are around 193 million EUR per year 
in the EU. 

Both  the  Europe  2020  Strategy3  and  the  Single  Market  Act4  identified  the  creation  of  an 
economy based on knowledge and innovation as a priority. Both initiatives seek to improve 
the framework conditions for business to innovate by creating unitary patent protection in the 
EU Member States together with a unified European patent litigation system.  

Despite of broad recognition of the competitive disadvantage European business faces in the 
absence of unitary patent protection, the Union has not been able to establish unitary patent 
protection. The Commission first proposed a Council Regulation on the Community patent in 
August 20005. In 2002, the European Parliament adopted a Legislative Resolution6. In 2003, 
the  Council  adopted  a  common  political  approach7,  but  a  final  agreement  could  not  be 
reached.  Discussions  on  the  proposal  were  re-launched  in  the  Council  after  adoption  by  the 
Commission of the Communication "Enhancing the patent system in Europe" in April 20078. 
The Communication confirmed the commitment to the creation of a single Community patent.  

The  Lisbon  Treaty  introduced  a  more  specific  legal  basis  for  the  creation  of  European 
intellectual property rights. According to Article 118(1) of the Treaty on the Functioning of 
the  European  Union  (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. Article 118(2) TFEU, however, sets out a specific legal basis 

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http://www.epo.org  
In  order  to  reduce  the  costs  caused  by  validation  requirements,  in  2000  the  EPC  Contracting  States 
adopted the so-called "London Agreement" (Agreement on the application of Article 65 EPC, OJ EPO 
2001, 550) which is currently in force in eleven EU Member States and results in reduced translation 
requirements. 
COM(2010) 2020. 
COM(2010) 608 final/2. 
COM(2000) 412. 
European Parliament legislative resolution on the proposal for a Council regulation on the Community 
patent (COM(2000) 412 - C5-0461/2000 - 2000/0177(CNS) (OJ C 127 E, 29.5.2003, p. 519–526). 
Council document 7159/03. 
COM(2007) 165. 

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for  the  language  arrangements  for  European  intellectual  property  rights,  which  are  to  be 
established  under  a  special  legislative  procedure  by  the  Council  acting  unanimously  after 
consulting  the  European  Parliament.  Therefore,  the  translation  arrangements  for  any  unitary 
patent system in the EU must be established by a separate regulation. 

In  December  2009,  the  Council  adopted  conclusions  on  an  "Enhanced  patent  system  for 
Europe"9  and  a  general  approach  on  the  proposal  for  a  Regulation  on  the  EU  Patent10. 
Translation arrangements, however, were not covered due to  the abovementioned  change in 
the legal basis. 

On  30  June  2010  the  Commission  adopted  a  proposal  for  a  Council  Regulation  on  the 
translation  arrangements  for  the  EU  patent11.  The  proposal  was  accompanied  by  an  Impact 
Assessment  report12  analysing  various  options  for  the  possible  translation  arrangements. 
Regardless of the significant efforts made by the Presidency of the Council, it was recorded at 
the Competitiveness Council meeting of 10 November 2010 that no unanimous agreement on 
the  translation  arrangements  could  be  reached13.  It  was  confirmed  at  the  Competitiveness 
Council  meeting  on  10  December  201014  that  insurmountable  difficulties  existed,  making  a 
decision requiring unanimity impossible now and in the foreseeable future. It follows that the 
objectives  of  the  proposed  Regulations  to  establish  unitary  patent  protection  in  the  entire 
European  Union  can  not  be  attained  within  a  reasonable  period  by  applying  the  relevant 
provisions of the Treaties.  

On  the  basis  of  the  request  of  twelve  Member  States  (Denmark,  Estonia,  Finland,  France, 
Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United 
Kingdom)  the  Commission  submitted  a  proposal15  to  the  Council  for  authorising  enhanced 
cooperation  in  the  area  of  unitary  patent  protection.  All  Member  States  specified  in  their 
requests that the Commission's legislative proposals within the enhanced cooperation should 
be  based  on  the  recent  negotiations  in  the  Council.  Following  the  adoption  of  the  proposal, 
Belgium, Austria, Ireland, Portugal, Malta, Bulgaria, Romania, the Czech Republic, Slovakia 
Hungary, Latvia, Greece and Cyprus also requested to join the cooperation. The proposal for 
the  authorising  decision  was  adopted  by  the  Council,  after  obtaining  the  consent  of  the 
European  Parliament,  on  10  March  2011.  The  present  regulation  implements  the  enhanced 
cooperation in the area of the creation of unitary patent protection as authorised by Council 
Decision 2011/167/EU16. 

1.2. 

Legal approach 

In  comparison  to  the  Commission's  proposal  in  2000,  this  proposal  builds  on  the  existing 
system  of  European  patents  by  providing  unitary  effect  to  European  patents  granted  for  the 
territories of the participating Member States. The unitary patent protection will be optional 

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Council document 17229/09. 
Council document 16113/09 Add 1. The terminology changed (from the "Community" to "EU" patent) 
due to the entry into force of the Lisbon Treaty. 
COM(2010) 350. 
SEC(2010) 796. 
Press  Release  of  the  Extraordinary  Council  meeting  "Competitiveness  (Internal  Market,  Industry, 
Research and Space)", 16041/10, 10.11.2010. 
See press release 17668/10. 
COM(2010) 790. 
Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the 
creation of unitary patent protection (OJ L 76, 22.3.2011, p. 53). 

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and co-exist with national and European patents. The proprietors of European patents granted 
by the European Patent Office, may submit a request to the EPO within one month after the 
publication of the mention of the grant of the European patent, asking for the registration of 
the unitary effect. Once it is registered, the unitary effect will provide uniform protection and 
will have equal effect throughout the territories of all participating Member States. European 
patents with unitary effect may only be granted, transferred, revoked or may lapse in respect 
of  those  territories  as  a  whole.  The  participating  Member  States  shall  give  the  task  of  the 
administration of European patents with unitary effect to the EPO. 

2. 

CONSULTATIONS WITH THE INTERESTED PARTIES 

In January 2006, the Commission launched a broad consultation on the future patent policy in 
Europe17.  More  than  2500  replies  were  received  from  a  variety  of  stakeholders,  including 
businesses in all sectors of the economy, business and SME associations, patent practitioners, 
public authorities and academics. Respondents were asking for a European patent system that 
provides  incentives  for  innovation,  ensures  the  diffusion  of  scientific  knowledge,  facilitates 
technology transfer, is available to all players in the market and is legally certain. The replies 
clearly  showed  stakeholders'  disappointment  with  the  lack  of  progress  in  the  Community 
patent project. In particular, nearly all respondents (the users of the patent system) rejected the 
translation  arrangements  included  in  the  Council's  2003  common  political  approach  which 
laid down that the patent holder would have to supply a translation of the claims (having legal 
effect) into all official Community languages.  

Stakeholders  expressed  an  overall  support  for  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  stated  their  support  for  the  creation  of  a  truly  unitary 
high  quality  patent.  They,  however,  underlined  that  political  compromises  should  not 
undermine  the  usefulness  of  the  project.  In  particular,  the  representatives  of  small  and 
medium-sized enterprises (SMEs) highlighted the importance of moderate patenting costs. 

The  issue  of  unitary patent protection  was also addressed extensively in the consultation on 
the Small Business Act for Europe, which consisted of a range of initiatives targeted to help 
European SMEs18. Small and medium-sized businesses identified the high level of patent fees 
and the legal complexity of the patent system as major obstacles19. In their submissions to the 
consultation,  businesses  in  general  and  SME  representatives  in  particular  requested  a 
significant reduction of the costs of patenting for a future unitary patent20. 

Recent  position  papers  from  various  stakeholders  refer  to  the  unitary  patent  protection. 
European  business  associations, such  as BusinessEurope21, UEAPME22 and Eurochambres23 

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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.  
COM(2008) 394. 
http://ec.europa.eu/enterprise/policies/sme/small-business-act/  
UEAPME  Expectations  on  the  Proposal  for  a  European  Small  Business  Act,  available  at 
www.ueapme.com.  Response  to  the  Consultation  on  a  Small  Business  Act  for  Europe,  available  at 
http://www.eurochambres.eu 
Views on key issues of the patent reform debate in Europe, available at http://www.businesseurope.eu 
Position  on  the  recent  policy  developments  on  the  European  Community  patent,  available  at 
http://www.ueapme.com 
Position paper on the European Patent System, available at http://www.eurochambres.eu 

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confirm that businesses, both large and small, want simplified, cost-effective and accessible 
patent protection. National business organisations in many Member States and across industry 
sectors have raises identical issues24. Stakeholders underlined that any solution for the unitary 
patent protection should build on the existing mechanisms for granting patents in Europe and 
necessitate no revision of the European Patent Convention. 

3. 

IMPACT ASSESSMENT 

This proposal is accompanied by an impact assessment which identifies the main problems in 
the  current  European  patent  system:  (i)  high  costs  related  to  translation  and  publication  of 
European patents, (ii) differences in the maintenance of patents in the Member States (annual 
renewal fees have to be paid each year in each country where the patent is validated); and (iii) 
administrative complexity of registering transfers, licences and other rights related to patents. 
As  a  consequence,  access  to  comprehensive  patent  protection  in  Europe  is  so  costly  and 
complex that it is inaccessible to many inventors and companies. 

The impact assessment analyses the impacts of the following options:  

Option 1 (Base-line scenario) – the Commission takes no action,  

Option  2  –  the  Commission  continues  to  work  with  the  other  institutions  towards  an  EU 
patent covering 27 Member States,  

Option  3  -  the  Commission  presents  proposals  for  regulations  implementing  enhanced 
cooperation: 

Sub-option 3.1 - the Commission proposes translation arrangements applicable in the area of 
unitary patent protection that correspond to its proposal of 30 June 2010, or 

Sub-option 3.2 – the Commission proposes translation arrangements applicable in the area of 
unitary patent protection based on its proposal of 30 June 2010 and incorporating elements of 
a compromise proposal discussed by the Council. 

The  analysis  carried  out  in  the  impact  assessment  has  demonstrated  that  option  3  with  sub-
option 3.2 is the preferred option. 

These  problems  can  only  be  addressed  at  EU  level,  as  without  an  EU  legal  instrument 
Member States would not sufficiently be able to establish legal effects attached to patents that 
are uniform in several Member States. 

4. 

LEGAL ELEMENTS OF THE PROPOSAL 

Council  Decision  2011/167/EU  authorised  the  Member  States  listed  in  its  Article  1  to 
establish enhanced cooperation in the area of the creation of unitary patent protection.  

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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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Article  118(2)  TFEU  provides  for  a  specific  legal  basis  to  establish  language  arrangements 
applicable  to  European  intellectual  property  rights  providing  uniform  protection  throughout 
the Union by means of regulations adopted by a special legislative procedure with the Council 
acting unanimously after consulting the European Parliament. 

5. 

BUDGETARY IMPLICATIONS 

This proposal has no impact on the Union budget.  

6. 

DETAILED DESCRIPTION 

Article 1 – Subject matter 

This Article defines the subject matter of this Regulation. 

Article 2 – Definitions 

This Article provides for definitions of the main terms used in this Regulation. 

Article 3 – Translation arrangements for the European patent with unitary effect 

This Article provides that where the specification of a European patent with unitary effect has 
been  published  in  accordance  with  Article  14(6)  of  the  EPC,  no  further  translations  are 
required.  Article  14(6)  of  the  EPC  provides  that  the  specification  of  a  European  patent  is 
published in the language of the proceedings before the EPO and includes a translation of the 
claims  into  the  other  two  official  languages  of  the  EPO.  Further  translations  are  only 
requested  in  case  of  a  dispute  in  accordance  with  Article  4  and  during  a  transitional  period 
under  Article  6.  A  request  for  unitary  effect  is  to  be  submitted  in  the  language  of  the 
proceedings. 

Article 4 – Translation in the case of a dispute 

This Article requires that in the case of a dispute concerning a European patent with unitary 
effect, the patent proprietor provides a full translation of the patent into an official language of 
the  participating  Member  State  in  which  either  the  alleged  infringement  took  place  or  in 
which  the  alleged  infringer  is  domiciled.  The  patent  proprietor  would  also  be  required  to 
provide,  at  the  request  of  the  court  competent  in  the  territories  of  the  participating  Member 
States for disputes concerning the European patent with unitary effect, a full translation of the 
patent into the language of proceedings of that court. Such translations would be provided at 
the expense of the patent proprietor. In the case of a dispute concerning a claim for damages 
the court hearing the dispute would take into consideration that, before having been provided 
with a translation in his own language, the alleged infringer may have acted in good faith and 
may have not known or had reasonable grounds to know that he was infringing the patent. 

Article 5 – Administration of a compensation scheme 

This Article provides that the administration of a compensation scheme for applicants filing 
patent  applications  in  one  of  the  official  languages  of  the  Union  that  is  not  an  official 
language of the European Patent Office is entrusted by the participating Member States to the 

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European  Patent  Office,  in  accordance  with  Article  12  of  Regulation  xx/xx  [substantive 
provisions]. 

Article 6 – Transitional measures 

This Article provides for transitional measures to be applied during a certain period, before a 
system of high quality machine translations into all official languages of the Union becomes 
available. 

Therefore, during a transitional period, a request for unitary effect as referred to in Article 12 
of Regulation xx/xx implementing enhanced cooperation in the area of the creation of unitary 
patent  protection  shall  be  accompanied  by  the  following:  (i)  a  full  translation  of  the 
specification  of  such  patent  into  English  where  the  language  of  the  proceedings  before  the 
EPO  in  accordance  with  Article  14(3)  of  the  EPC  is  French  or  German;  or  (ii)  a  full 
translation  of  the  specification  of  such  patent  into  any  official  language  of  the  participating 
Member  States  that  is  an  official  language  of  the  Union  where  the  language  of  the 
proceedings before the EPO is English. 

These translations required during the transitional period would be published by the European 
Patent  Office  as  soon  as  possible  after  the  date  on  which  a  request  for  unitary  effect  as 
referred  to  in  Article  12  of  Regulation  xx/xx  [substantive  provisions]  is  filed.  Further,  it  is 
specified that the texts of these translations do not have any legal effect and are provided for 
information purposes only. 

The transitional period should terminate as soon as high quality machine translations into all 
official languages of the Union are available. The quality of machine translations should be 
regularly  and  objectively  evaluated  by  an  independent  expert  committee  established  by  the 
participating Member States in the framework of the European Patent Organisation as referred 
to in Article 12 of Regulation xx/xx [substantive provisions] and composed of representatives 
of  the  European  Patent  Office  and  users  of  the  European  patent  system.  This  expert  group 
would present an objective evaluation of the availability of high quality machine translations 
every two years starting from the sixth year after the entry into application of this Regulation. 
On  this  basis,  the  Commission  would  present  a  report  to  the  Council  and,  if  appropriate, 
propose to terminate the transitional period.  

It is considered that the machine translations into all official languages of the Union should be 
developed within 12 years at the latest. Therefore, if the transitional period is not terminated 
by the Council on the basis of the proposal of the Commission, it should automatically lapse 
12 years after this Regulation becomes applicable. 

Article 7 - Entry into force 

This Article provides that this Regulation shall enter into force on the twentieth day after its 
publication  in  the  Official  Journal  of  the  European  Union.  However,  since  the  substantive 
provisions  applicable  to  a  European  patent  with  unitary  effect  are  governed  by  Regulation 
xx/xx  implementing  enhanced  cooperation  in  the  area  of  the  creation  of  unitary  patent 
protection and are completed by the translation arrangements provided for in this Regulation, 
these Regulations shall be applied jointly. Therefore, the date of application of this Regulation 
will be a specific date which will coincide with the date of application of Regulation  xx/xx 
[substantive provisions]. 

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2011/0094 (CNS) 

Proposal for a 

COUNCIL REGULATION 

implementing enhanced cooperation in the area of the creation of unitary patent 
protection with regard to the applicable translation arrangements 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 118(2) thereof, 

Having  regard  to  Council  Decision  2011/167/EU  of  10  March  2011  authorising  enhanced 
cooperation in the area of the creation of unitary patent protection25, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Parliament26, 

Acting in accordance with a special legislative procedure, 

Whereas: 

(1) 

(2) 

Pursuant  to  Council  Decision  2011/167/EU  authorising  enhanced  cooperation  in  the 
area  of  the  creation  of  unitary  patent  protection,  Belgium,  Bulgaria,  the  Czech 
Republic,  Denmark,  Germany,  Estonia,  Greece,  France,  Ireland,  Cyprus,  Latvia, 
Lithuania,  Luxembourg,  Hungary,  Malta,  the  Netherlands,  Austria,  Poland,  Portugal, 
Romania,  Slovenia,  Slovakia,  Finland,  Sweden  and  the  United  Kingdom  (hereinafter 
"participating  Member  States")  were  authorised  to  establish  enhanced  cooperation 
between themselves in the area of the creation of unitary patent protection. 

Under Regulation of the European Parliament and of the Council xx/xx implementing 
enhanced cooperation in the area of the creation of unitary patent protection27, certain 
European  patents  granted  by  the  European  Patent  Office  under  the  rules  and 
procedures of the Convention on the Grant of European Patents of 5 October 1973, as 
amended  (hereinafter  "EPC")  may  be  given  unitary  effect  in  the  territories  of  the 
participating Member States upon the request of the patent proprietor.  

(3) 

Translation arrangements for European patents with unitary effect in the territories of 
the  participating  Member  States  (hereinafter  "European  patent  with  unitary  effect") 

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OJ, L 76, 22.3.2011, p. 53. 
OJ C , , p. . 
OJ C , , p. . 

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(4) 

(5) 

(6) 

should  be  established  by  a  separate  Regulation  in  accordance  with  Article 118(2)  of 
the Treaty on the Functioning of the European Union (hereinafter "TFEU"). 

In accordance with Council Decision 2011/167/EU authorising enhanced cooperation 
in the area of the creation of unitary patent protection, the translation arrangements for 
European  patents  with  unitary  effect  should  be  simple  and  cost-effective  and 
correspond  to  those  provided  for  in  the  proposal  for  a  Council  Regulation  on  the 
translation  arrangements  for  the  European  Union  patent28,  presented  by  the 
Commission on 30 June 2010, combined with the elements of compromise proposed 
by the Presidency in November 2010 that had wide support in the Council29.  

Translation  arrangements  applicable  to  European  patents  with  unitary  effect  that  are 
cost-effective,  simplified  and  ensure  legal  certainty  should  stimulate  innovation  and 
should,  in  particular,  benefit  small  and  medium-sized  enterprises.  Such  translation 
arrangements should make access to the European patent with unitary effect and to the 
patent system as a whole easier, less costly and less risky. 

Since the European Patent Office is responsible for the grant of European patents, the 
translation arrangements for the European patent with unitary effect should be built on 
the current procedure in the European Patent Office. Those arrangements should aim 
at achieving the necessary balance between the interests of economic operators and the 
public  interest  in  terms  of  the  cost  of  proceedings  and  the  availability  of  technical 
information. 

(7)  Without  prejudice  to  certain  transitional  arrangements,  where  the  specification  of  a 
European  patent  with  unitary  effect  has  been  published  in  accordance  with  Article 
14(6) of the EPC, no further translations should be required. Article 14(6) of the EPC 
provides that the specification of a European patent is published in the language of the 
proceedings before the European Patent Office and includes a translation of the claims 
into the other two official languages of the European Patent Office.  

(8) 

In  the  case  of  a  dispute  concerning  a  European  patent  with  unitary  effect,  it  is  a 
legitimate requirement that the patent proprietor should provide a full translation of the 
patent into an official language of the participating Member State in which either the 
alleged  infringement  took  place  or  in  which  the  alleged  infringer  is  domiciled.  The 
patent  proprietor  should  also  be  required  to  provide,  at  the  request  of  a  court 
competent in the territory of the participating Member States for disputes concerning 
the  European  patent  with  unitary  effect,  a  full  translation  of  the  patent  into  the 
language of proceedings of that court. Such translations should not be carried out by 
automated means and should be provided at the expense of the patent proprietor. In the 
case of a dispute concerning a claim for damages the court hearing the dispute should 
take into consideration that, before having been provided with a translation in his own 
language, the alleged infringer may have acted in good faith and may have not known 
or had reasonable grounds to know that he was infringing the patent. The competent 
court should assess the circumstances of the individual case and inter alia should take 
into  account  whether  the  alleged  infringer  is  a  small  and  medium-sized  enterprise 
operating  only  at  local  level,  the  language  of  the  proceedings  before  the  European 

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COM(2010) 350. 
Council documents 15385/10 and 15385/10 ADD 1. 

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(9) 

(10) 

Patent  Office  and,  during  the  transitional  period,  the  translation  submitted  together 
with the request for unitary effect. 

In  order  to  facilitate  access  to  European  patents  with  unitary  effect,  in  particular  for 
small and medium-size enterprises, applicants who do not have a language in common 
with one of the official languages of the European Patent Office should be able to file 
their patent applications at the European Patent Office in any other official language of 
the  Union.  As  a  complementary  measure,  for  applicants  obtaining  European  patents 
with unitary effect and having their residence or principal place of business within a 
Member  State  of  the  Union  which  has  as  an  official  language  a  language  other  than 
one  of  the  official  languages  of  the  European  Patent  Office,  a  system  of  additional 
reimbursements  of  the  costs  related  to  the  translation  from  that  language  into  the 
language of the proceedings of the European Patent Office, beyond what is currently 
already  in  place  at  the  European  Patent  Office,  should  be  administered  by  the 
European Patent Office in accordance with Article 12 of Regulation xx/xx [substantive 
provisions]. 

In  order  to  promote  the  availability  of  patent  information  and  the  dissemination  of 
technological  knowledge,  machine 
translations  of  patent  applications  and 
specifications  into all  official languages of  the  Union  should  be  available  as  soon  as 
possible. Machine translations are being developed by the European Patent Office and 
are  a  very  important  tool  seeking  to  improve  access  to  patent  information  and  to 
disseminate  widely  the  technological  knowledge.  The  timely  availability  of  high 
quality machine translations of European patent applications and specifications into all 
official  languages  of  the  Union  would  benefit  all  the  users  of  the  European  patent 
system.  Machine  translations  are  a  key  feature  of  European  Union  policy.  Such 
machine translations should serve for information purposes only and should not have 
any legal effect.  

(11)  During a transitional period, before a system of high quality machine translations into 
all  official  languages  of  the  Union  becomes  available,  a  request  for  unitary  effect  as 
referred  to  in  Article  12  of  Regulation  xx/xx  [substantive  provisions]  shall  be 
accompanied by a full translation of the specification of the patent into English where 
the  language  of  the  proceedings  before  the  European  Patent  Office  is  French  or 
German,  or  into  any  official  language  of  the  participating  Member  States  that  is  an 
official  language  of  the  Union  where  the  language  of  the  proceedings  before  the 
European  Patent  Office  is  English.  Those  arrangements  would  ensure  that  during  a 
transitional  period  all  European  patents  with  unitary  effect  are  made  available  in 
English  which  is  the  language  customary  in  the  field  of  international  technological 
research  and  publications.  Furthermore,  they  would  ensure  that  with  respect  to 
European patents with unitary effect translations would be published in other official 
languages of the participating Member States. Such translations should not be carried 
out  by  automated  means  and  their  high  quality  should  contribute  to  the  training  of 
translation  engines  by  the  European  Patent  Office.  They  would  also  enhance  the 
dissemination of patent information. The transitional period should terminate as soon 
as  high  quality  machine  translations  into  all  official  language  of  the  Union  are 
available,  subject  to  an  objective  evaluation  of  the  quality.  The  quality  of  machine 
translations  should  be  regularly  and  objectively  evaluated  by  an  independent  expert 
committee  established  by  the  participating  Member  States  in  the  framework  of  the 
European  Patent  Organisation  and  composed  of  the  representatives  of  the  European 
Patent  Office  and  the  users  of  the  European  patent  system.  Given  the  technological 

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development,  the  maximum  period  for  the  development  of  high  quality  machine 
translations  cannot  be  considered  to  exceed  12  years.  Consequently,  the  transitional 
period should lapse 12 years from the date of application of this Regulation, unless it 
has been decided to terminate that period earlier.  

(12)  Since the substantive provisions applicable to a European patent with unitary effect are 
governed by Regulation xx/xx implementing enhanced cooperation in the area of the 
creation of unitary patent protection and are completed by the translation arrangements 
provided  for  in  this  Regulation,  this  Regulation  should  apply  on  the  same  date  as 
Regulation xx/xx [substantive provisions] [the date to be determined].  

(13)  This  Regulation  is  without  prejudice  to  the  rules  governing  the  languages  of  the 
Institutions  of  the  Union  established  in  accordance  with  Article  342  TFEU  and  to 
Council  Regulation  1/1958  determining  the  languages  to  be  used  by  the  European 
Economic  Community30.  This  Regulation  is  based  on  the  linguistic  regime  of  the 
European Patent Office and should not be considered as creating a specific linguistic 
regime for the Union, or as creating a precedent for a limited language regime in any 
future legal instrument of the Union. 

(14) 

In accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on 
European  Union,  the  objective  of  the  action  to  be  taken,  namely  the  creation  of  a 
uniform and simplified translation regime for European patents with unitary effect, can 
be  only  achieved  at  European 
the  principle  of 
proportionality, as set out in that Article, this Regulation does not go beyond what is 
necessary in order to achieve this objective. 

level.  In  accordance  with 

HAS ADOPTED THIS REGULATION: 

Article 1 
Subject matter 

This  Regulation  implements  the  enhanced  cooperation  in  the  area  of  the  creation  of  unitary 
patent  protection  authorised  by  Council  Decision  No  2011/167/EU  with  regard  to  the 
applicable translation arrangements. 

Article 2 
Definitions 

For the purposes of this Regulation, the following definitions shall apply: 

(a) 

(b) 

"European patent with unitary effect" means a European patent which benefits 
from  unitary  effect  in  the  territories  of  the  participating  Member  States  by 
virtue of Regulation xx/xx [substantive provisions]. 

"Specification of  the European  patent" means a specification of the European 
patent  as  defined  in  Rule  73  of  the  Implementing  Regulations  of  the 

30 

Council  Regulation  1/1958  determining  the  languages  to  be  used  by  the  European  Economic 
Community (OJ 17, 6.10.1958, p. 385 – 386). 

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Convention on the Grant of European Patents of 5 October 1973, as amended 
(hereinafter "EPC"); 

(c) 

"Language of the proceedings" means the language in the proceedings before 
the European Patent Office as defined in Article 14(3) of the EPC. 

Article 3 
Translation arrangements for the European patent with unitary effect 

Without prejudice to Articles 4 and 6 of this Regulation, where the specification of a 
European  patent  with  unitary  effect  has  been  published  in  accordance  with  Article 
14(6) of the EPC, no further translations are required. 

A  request  for  unitary  effect  as  referred  to  in  Article  12  of  Regulation  xx/xx 
[substantive provisions] shall be submitted in the language of the proceedings. 

Article 4 
Translation in the case of a dispute 

In the case of a dispute relating to a European patent with unitary effect, the patent 
proprietor  shall  provide  at  the  request  and  the  choice  of  an  alleged  infringer,  a  full 
translation of the patent into an official language of the participating Member State in 
which either the alleged infringement took place or in which the alleged infringer is 
domiciled. 

In the case of a dispute relating to a European patent with unitary effect, the patent 
proprietor shall provide in the course of legal proceedings, at the request of a court 
competent  in  the  territories  of  the  participating  Member  States  for  disputes 
concerning European patents with unitary effect, a full translation of the patent into 
the language of the proceedings of that court. 

The cost of the translations referred to in paragraphs 1 and 2 shall be borne by the 
patent proprietor. 

In the case of a dispute concerning a claim for damages, the court hearing the dispute 
shall  take  into  consideration  that  the  alleged  infringer  may  have  acted  without 
knowing  or  having  reasonable  grounds  to  know  that  he  was  infringing  the  patent 
before having been provided with the translation referred to in paragraph 1. 

1. 

2. 

1. 

2. 

3. 

4. 

Article 5 
Administration of a compensation scheme 

Given the fact that European patent applications may be filed in any language under Article 
14(2) of the EPC, in accordance with Article 12 of Regulation xx/xx [substantive provisions], 
the participating Member States, shall give, within the meaning of Article 143 of the EPC, the 
European Patent Office the task of administering a compensation scheme of reimbursing all 
translation costs up to a ceiling, from the fees referred to in Article 13 of that Regulation, for 
applicants  filing  patent  applications  at  the  European  Patent  Office  in  one  of  the  official 
languages of the Union that is not an official language of the European Patent Office. 

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Article 6 
Transitional measures 

During a transitional period starting on the date of application of this Regulation in 
accordance  with  Article  7(2)  of  this  Regulation,  a  request  for  unitary  effect  as 
referred  to  in  Article  12  of  Regulation  xx/xx  [substantive  provisions]  shall  be 
submitted together with the following: 

(a) 

(b) 

where the language of the proceedings is French or German, a full translation 
of the specification of the European patent into English; or  

where  the  language  of  the  proceedings  is  English,  a  full  translation  of  the 
specification  of  the  European  patent  into  any  official  language  of  the 
participating Member States that is an official language of the Union. 

In  accordance  with  Article  12  of  Regulation  xx/xx  [substantive  provisions],  the 
participating  Member  States,  shall  give,  within  the  meaning  of  Article  143  of  the 
EPC, the European Patent Office the task of publishing the translations referred to in 
paragraph 1 as soon as possible after the date on which a request for unitary effect as 
referred  to  in  Article  12  of  Regulation  xx/xx  [substantive  provisions]  is  filed.  The 
text  of  such  translations  shall  have  no  legal  value  and  be  for  information  purposes 
only. 

Every  two  years  from  the  sixth  year  calculated  from  the  date  of  application  of  this 
Regulation,  an  objective  evaluation  of  the  availability  of  high  quality  machine 
translations of patent applications and specifications into all official languages of the 
Union  as  developed  by  the  European  Patent  Office  shall  be  carried  out  by  an 
independent  expert  committee.  This  expert  committee  shall  be  established  by  the 
participating Member States in the framework of  the  European Patent Organisation 
and  shall  be  composed  of  representatives  of  the  European  Patent  Office  and  of  the 
non-governmental  organisations  representing  users  of  the  European  patent  system 
invited  by  the  Administrative  Council  of  the  European  Patent  Organisation  as 
observers in accordance with Article 30(3) of the EPC. 

On  the  basis  of  the  evaluation  referred  to  in  paragraph  3,  every  two  years  the 
Commission shall present a report to the Council and, if appropriate, make proposals 
for terminating the transitional period.  

If  the  transitional  period  is  not  terminated  on  the  basis  of  a  proposal  of  the 
Commission, it shall lapse 12 years from the date of application of this Regulation.  

Article 7 
Entry into force 

This  Regulation  shall  enter  into  force  on  the  twentieth  day  following  that  of  its 
publication in the Official Journal of the European Union. 

It  shall  apply  from  [a  specific  date  will  be  set  and  it  will  coincide  with  the  date  of 
application  of  Regulation  xx/xx  on  the  implementation  of  enhanced  cooperation  in 
the area of the creation of unitary patent protection]. 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

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This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  the  participating 
Member States in accordance with the Treaties. 

Done at Brussels,  

For the Council 
The President 

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