Twelve EU Member States to move on unitary patent system

This is an update the article featured here

In our winter edition of Inside IP we discussed the long-standing proposal for establishing a common patent for the whole of the European Union and referred to a proposal by the European Commission in which EU patents would be granted in English, French and German and a compromise proposed by the Belgian Presidency to the EU in which EU patents would be granted in English and one other language chosen by the patent proprietor. However, despite extensive discussions towards the end of 2010 no unanimity was reached among the 27 member states with Italy and Spain, in particular, being unhappy about not having their languages officially recognised.

As a result of the failure to reach agreement, the European Commission has formally presented its proposal to create a single European patent by invoking the “enhanced cooperation” procedure allowed under the Lisbon Treaty which allows a group of at least eight Member States to implement a new EU law without having convinced all the remaining Member States to agree.

The “enhanced cooperation” procedure means that any scheme that is introduced will only be valid in participating countries and the 12 Member States of Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the UK, have recently approached the Commission urging it to accept enhanced cooperation between them as the only way forward so as to create a unitary patent system that would cover these 12 countries, whilst other countries may join on the same terms at any time.

A final decision on the proposal must be taken by the Competitiveness Council in March 2011, but it is unlikely to be rejected seeing as it now seems very unlikely that a compromise solution will be reached that would encompass all EU Member States.

As part of the enhanced cooperation agreement, patents will be examined and granted in one of the official languages of the EPO - English, French or German. Applicants in the EU whose language is not English, French or German have the option to file applications in any other official language of the European Union, with the costs for translation into one of the official languages of the EPO being refunded.

Ian Grey 17 Jan 2011

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