European Council gives go-ahead for EU patent

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European Council gives go-ahead for EU patent – but is it legal

Home/Policies & Legislation | Posted 15/04/2011 0 Post your comment

The European Council announced that it had given the go-ahead on 10 March 2011 for use of a rarely used provision of the Lisbon Treaty known as ‘enhanced cooperation’ to launch a common EU patent system without Italy and Spain on board.

The use of an enhanced cooperation has been requested by 25 out of 27 EU Member States, and the European Parliament already gave its consent for using this procedure on 15 February 2010, despite doubts over the legality of the proposed linguistic regime.

The plans to implement a single European patent system go all the way back to 2000, when the European Commission presented its first proposal on the common patent. However, progress has been hampered by language issues, which was the reason for the enhanced cooperation procedure to be instigated.

The plan is for the single patent to be based on three languages—English, French and German—as these are the languages used in the European Patent Office (EPO). However, these plans have enraged Italy, which wants an English-only patent system; and Spain, which says the plan discriminates against Spanish companies.

Although not part of the agreement now, Italy and Spain can still join in at any time if they wish.

Despite the fact that a European patent already exists, the problem with the current system is that it requires validation in every EPO Member State, requiring full translation into the appropriate official language(s). Whereas the proposed single patent would automatically be valid in all participating Member States, significantly reducing the costs involved to establish a patent for a product in Europe.

Controversy

The proposal, however, is not without controversy. It foresees the establishment of a European Patent Court (EPC) to deal with possible cross-border disputes and spare plaintiffs from having to file separate lawsuits in every Member State where a patent is registered, as is the case now.

However, on 8 March 2010 the European Court of Justice (ECJ) announced that ‘the draft agreement on the creation of a European and Community Patent Court is not compatible with European Union law’. This is due to the creation of the EPC, which the ECJ declared ‘would deprive national courts and tribunals of the power to refer questions to the (national) court for a preliminary ruling’.

What’s next

If it is allowed (legally) to go ahead then the European Commission is expected to formally submit two legislative proposals, one establishing the single patent and the other on the language regime. These proposals are expected to reach the European Parliament in May 2011 for a first reading.

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Source: EurActiv, Europa, European Council, European Court of Justice, European Parliament