In March of this year we reported on the prospects for a unitary European patent. At that time, the Court of Justice of the European Union had ruled that the proposed litigation system to accompany the unitary patent was incompatible with EU law.
Despite this blow, proposals for a unitary patent have continued to move slowly forward. One of the big stumbling blocks has been that the proposals are not supported unanimously by all 27 EU Member States, with Spain and Italy consistently expressing that they are unhappy with just English, French and German being official languages.
In response to a request by 25 EU Member States, the Competitiveness Council of the European Union approved the use of the so-called “enhanced cooperation procedure”, allowing the proposals for a unitary EU patent to move forward.
Enhanced cooperation is a procedure which allows a minimum of nine EU Member States to establish cooperation in a certain area without other EU Member States being involved. The aim of this procedure is to overcome deadlock, where a proposal is blocked by the veto of a state or group of states who do not wish to be involved. In order for the use of enhanced cooperation to be approved, all other avenues must have been exhausted; it must be a last resort, where it is impossible to attain the objectives in a reasonable period by the EU as a whole. In addition, enhanced cooperation may not be used to discriminate against Member States and its use must further the objectives of the EU.
In this case, the use of enhanced cooperation allows the proposals for a unitary EU patent to move forward despite the opposition of Spain and Italy. However, both of those countries have now filed actions for annulment of the Council decision which authorised the use of enhanced cooperation.
Italy argues that the envisaged use of enhanced cooperation seeks merely to circumvent the unanimity requirement, and does not further objectives of the Union; it does not realise a uniform protection of intellectual property rights throughout the Union, but would hinder the functioning of the internal market by creating obstacles to trade. They also state that the conditions for enhanced cooperation, it being a last resort and not possible to attain the objectives by any other means, are not met.
Spain states that the use of enhanced cooperation in this instance amounts to an abuse of power, its use excluding a Member State from negotiations despite the European Patent Convention already providing for the creation of unitary patents between member countries. In addition, they state that the proposed unitary patent is a violation of the jurisdictional system of the Union as there is no procedure envisaged to settle disputes.
It is clear that there is likely to be a lengthy wait before we see any form of unitary EU patent in practice, and that there are considerable hurdles still to overcome before such a system could be implemented.
26 July 2011