A centralised European patent court came a step closer at the beginning of November, following the publication of draft rules of procedure by a committee of European patents judges. In the light of the progress of any European harmonisation so far, those in the UK patent profession should not, however, hold their breath.

At present, the only European cooperation on patents is via the European Patent Office (EPO) based in Munich. The EPO offers a centralised procedure for the grant of a patent.

However, on grant a patentee must translate its patent into the language of each of the countries in which it wants to bring its patent into effect. With 31 countries (and almost as many languages) validating a patent throughout Europe is a costly venture. Having said that, the EPO is clearly a success and has vastly assisted parties in obtaining patent protection around Europe even if most patents are only validated in a handful of countries.

As stated, a major barrier to bringing one's patent into force around Europe is the high cost of translation. Fairly recently, however, various states signed up to the London Agreement proposing a single language should be acceptable throughout Europe; namely the language in which the patent was prosecuted, which can only be one of English, French or German. Initially, it seemed that the London Agreement was also doomed to failure due to strong opposition from the French, but it now seems there may be movement on this issue.

A clear possible consequence of the adoption of the London Agreement is that more European patents will be validated in more states. This would seem to make the introduction of the European Patent Litigation Agreement (EPLA) more likely. However, there are powerful interest groups opposed to EPLA.

A particularly vocal opponent is the 'No Software Patents' brigade. This lobby group holds the very strong view that a European Patent Court would introduce and expand on software patents via the back door. The influence of this group should not be underestimated and it should be recalled that it was instrumental in causing the rejection of the software patent directive. The principal reason for this group's opposition is due to the fact the EPO regularly grants software patents and this is seen as being different from the situation before the national courts such as those of Germany and the UK.

Hence, although major software patentees are securing grant of such patents, they (apparently) do not dare enforce them for fear that they will be held invalid before the national infringement courts. Yet, if a European Patent Court is established under the EPLA, it will most likely follow the more lenient EPO jurisdiction and hence such patents will be enforceable.

The most pressing rationale behind the introduction of EPLA appears to be that of cost. In his speech to the European Parliament, Commissioner Charlie McCreevy made clear that "the recent consultation on the future of the patent system in Europe delivered one simple message: the legal framework should offer an affordable patent protection for all businesses". Other reasons included legal certainty (that is to say consistent results throughout Europe) and the fact that the system should be applied for the benefit of all players.

Let us take the first of these laudable aims first – cost. It must clearly be the case that low costs means low legal costs which means less money for lawyers. This is unless the volume of work increases by a like amount.

In fact, it may well be the case that it does. Many UK patent lawyers were sceptical as to the effect on their work when the EPO come into being in the late 1970s. No longer would patentees need to pursue parallel patents in, for example, the UK, France and Germany. Hence, they predicted, less work. In fact, the converse has been the case and although the reduced cost may not be the only factor, the quantity of work has soared.

Whether the same happens if a European Patent Court is established is difficult to tell. The Community Trade Mark does not appreciably seem to have increased the volume of litigation but this system has been implemented in an entirely different manner, namely by designating various of the national courts as Community Trade Mark Courts rather than setting up a brand new central court.

The proponents of the EPLA are of the very clear view that the European Patent Court will save costs. Leaving the UK to one side, the view is stated that the costs of going to the court will be comparable with pursuing litigation in three European states. The question is left unaddressed as to how many organisations actually do litigate in three or more states and (of those who do not) how many would actually want to do so?

The latter point is worthy of serious consideration. Many clients are wholly interested either in national proceedings or worldwide proceedings. Neither will benefit from a European Court; the former for obvious reasons, and the latter because such clients tend to choose representative jurisdictions on the road to a global settlement. In fact, the Rolls-Royce treatment given by the UK Patent Court is precisely what makes it attractive to such clients.

So turning (inevitably) to the cost of UK proceedings, a strong argument is being made that the EPLA will permit cheaper patent litigation in the UK since the proposed costs before a European Patent Court will be lower than typical High Court patent litigation. This is like using a sledgehammer to crack a nut. If UK patent litigation is too expensive then surely the solution is to put procedures in place to make it cheaper (such as for example considering those of the Chartered Institute of Patent Agents' affordable litigation subcommittee) rather than the wholesale institution of a parallel European system.

Moreover, it must be recalled that not all patentees consider the UK over-priced. Some consider it rather good value that such a thorough review of a patent can be conducted prior to US litigation, which is typically five times the cost.

In addition, as ever, its proponents mis-judge the true costs of German patent litigation and perpetuate the myth that it is an order of magnitude cheaper than the UK. It is correct that it can be cheaper but after an infringement hearing, a separate validity hearing, a second infringement hearing (because the validity court has amended the claims) followed by the inevitable appeals (by way of rehearing) it is not necessarily much cheaper and it is certainly slower.

Hence, it is arguably not large-scale UK patent litigation that is too expensive (since it is certainly no more expensive that other heavyweight commercial litigation) but small-scale UK patent litigation that costs too much.

The EPLA would not seem to assist this but some of the procedures mooted for the court might. If the real problem with UK patent litigation is the high costs of the small case, perhaps consideration should be given to introducing some of the proposed EPLA procedures in the Patents County Court.

Richard Davis is a specialist patent barrister at Hogarth Chambers.