The European Union Patent Court proposed by the European Commission must, crucially, take “due care of the public interest” in its considerations regarding pharmaceutical patents, say generic drugmakers.

Greg Perry, director-general of the European Generics Medicine Association (EGA), welcomed the proposal for a central EU Patent Court, put forward by the Commission’s DG Internal Market, as a “very positive initiative.” However, the Court should also take account of the interest of “other affected parties such as the public or the administration, not party in the litigation…when deciding on provisional measures,” he told the EGA’s legal affairs forum on March 13.

Such a provision would be “crucial in the case of the pharmaceutical industry, since a decision regarding a patent covering a medicine will have great financial impact, not only on the companies involved, but also on consumers and the member states,” the EGA emphasises in its new position paper on the Patent Court proposals, which was presented at the forum.

Setting-up the Patent Court would ensure harmonization of patent rights throughout the member states, but it must support and strengthen valid patent rights and justified claims only, the paper goes on.

In the Commission’s current draft proposals for the Court, the presence of a technically-qualified judge would be optional for local and regional divisions. But, says the EGA, this would mean that cases or preliminary injunctions might be decided without the proper technical criteria or insight. A central judiciary composed of experienced and technically qualified judges is essential for the Court to be efficient, and the presence of a technically-qualified judge in local and regional courts should be compulsory, it says.

Moreover, the Court’s Advisory Committee should consist of judges only - and not also include patent lawyers and attorneys, as the Commission suggests - in order to ensure that the Committee is “absolutely neutral and should not be influenced,” the industry submission stresses.

In its proposals for enhancing the patent system in Europe presented to Parliament and the Council, the Commission says the region’s continued failure to create a single, affordable EU-wide patent “has serious consequences for the competitiveness of Europe in relation to the challenges of the US, Japan and emerging economic powers such as China.”

“Even in Europe, the US and Japan patent more than the EU,” it says, adding: ”if Europe wants to be at the forefront of innovation, an improved patent strategy is indispensable.”

Meantime, the EGA forum also welcomed the European Patent Office’s increasing refusal rate of weak or faulty applications and the additional time examiners now have to refuse them, pointing out that these measures will help stop the granting of patents which are ultimately revoked in opposition or in national invalidity proceedings.

The Association also called for the introduction of a “duty of candour” requirement, to ensure that all information relevant to the patent is disclosed by the applicant. However it acknowledged that this would involve amendments to the European Patent Convention, requiring the political support of the member states.