European companies are suffering from an ineffective patent system

IN 1997 the European Patent Office (EPO) gave a patent to Massachusetts General Hospital for its use of nitric oxide to treat bronchoconstriction, a method often used for “blue baby” syndrome. Three gas companies—America’s Air Products, France’s Air Liquide and Germany’s Westfalen Gas—appealed against the grant of the patent. Mass General and its Swedish licensee, AGA, then launched actions for infringement in the Netherlands, France and Germany. In 2000 a Dutch court said the patent was partially valid, in 2003 a French court said its validity was questionable and in the same year a German court judged it valid. Then in 2004 the EPO revoked the patent entirely.

Such cases infuriate companies in Europe. They want a single European patent to protect intellectual property across the region, and a single court in which to defend their rights. At the moment, inventors can apply to the EPO, with which all 27 members of the European Union and nine other European countries co-operate. But EPO patents, once granted, must be validated, translated and annually renewed in all those countries in which a firm wants protection. Litigation is country by country, and national courts can in effect overturn patents granted by the EPO, or uphold patents which have been invalidated by it. Firms can take advantage of this by filing directly with national patent offices. …