European Council authorises enhanced cooperation on creation of a unitary EU patent

In our article of 17th January 2011 (here), we reported that following a failure to reach a consensus among all the member states of the European Union, the European Commission had formally presented a proposal to create a single European patent by invoking the “enhanced cooperation” procedure allowed under the Lisbon Treaty. This permits a group of at least nine Member States to implement a new EU law without having convinced all the remaining Member States to agree. Under the enhanced cooperation agreement, patents will be examined and granted in one of the official languages of the EPO - English, French or German, and it will be a unitary right enforceable within all participating countries. Applicants in the EU whose language is not English, French or German will 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.

Since the European Commission submitted their proposal for enhanced cooperation, all the Member States of the EU have agreed to participate apart from Spain and Italy, who are still unhappy that their own languages have not been recognised as official languages under the enhanced cooperation procedure.

We can also now report that on 10th March 2011, the EU Competitiveness Council decided to “give the green light” to start work on the enhanced cooperation of the unified EU patent, despite the lack of any participation by Spain and Italy (See the EU Council press release here). Following this positive response from the EU Council, the European Commission is likely to publish an implementing regulation within the next few months and so the EU patent is now a further step closer to reality.

In our article of 8th March 2011 (here), we reported that the European Court of Justice (ECJ) had given a negative opinion (Opinion 1/09) on the compatibility of the draft agreement to the proposed European and Community Patents Court with the Treaties that underpin the European Union.

In a press release (here), issued following the ECJ Opinion, the EU Commission welcome the opinion and have announced that they intend to work quickly to find an appropriate way forward for the patent litigation system. The European Commission also state that the negative opinion on proposed European and Community Patents Court by the ECJ should have no impact on the EU patent based on the enhanced cooperation agreement.

Although the EU Competitiveness Council has given its approval to the formation of an EU patent based on the enhanced cooperation agreement, it remains to be seen how any eventual EU patent will be litigated and whether the lack of a unified patent litigation system will affect the use of the EU patent by industry.

Ian Grey 17 Mar 2011

Return to news list