The EU Patent and the EU Patents Court - what does 2011 hold?

As we enter 2011 the question still remains - are we any closer to a unified patent system for Europe? 

Below is a summary of the state of play with respect to the two ongoing initiatives, namely:

• The European Union Patent (EU Patent) (formerly the Community Patent) – a unitary patent right for the EU Member States; and
• The European and EU Patents Court (EEUPC) - a one-stop shop for litigating European Patents and (should they come to exist) European Union Patents.

The European Union Patent

A draft Regulation on the EU Patent was agreed, at least on a general level, by the EU Competitiveness Council as far back as December 2009.

However, one year on and the vexed issue of the official language(s) of the EU Patent remains the focus of attention. This is despite the European Commission's preferred approach of a trilingual system (based on the EPO approach of English, French and German), and the Belgian Presidency of the EU Council's suggested compromise involving, effectively, access to cost-effective translation for member states with a "home language" other than English, French or German.

A number of Member States remain vigorously opposed to, or at least highly sceptical of, a trilingual system as being discriminatory and/or likely to fail in the aim of managing the administration costs of a unified patent system for Europe.

Matters appear to be coming to a head following a reported decision by several Member States to ask the European Commission to engage with them on working towards a unified patent system under the EU's "enhanced cooperation" procedure.

This rarely-used procedure essentially allows a group of Member States, in the event of an apparent impasse, to "go it alone" and move forwards towards a goal at the EU level, whilst leaving behind the opposing Member States.

During a public debate at meeting of the European Competitiveness Council on 10 December, a majority of Member States including Germany, France and Great Britain supported an agreement to cooperate on the realization of a EU patent and have asked the Commission to present a proposal. Both Italy and Spain opposed the initiation of an enhanced cooperation.  However, importantly, Hungary, which holds the presidency of the European Union from January 2011, expressed its commitment to the proposal.

The European Commission presented a proposal opening the way for “enhanced cooperation” to create unitary patent protection in the EU on 14th December Read the press release here.  The Commission’s proposed decision to authorise enhanced cooperation on unitary patent protection would allow some Member States to move forward immediately, leaving the possibility for others to join at a later stage. The proposed decision first needs the approval of the European Parliament. Then at its next meeting (probably March) the Competitiveness Council will take a formal decision by qualified majority. The Commission will follow this with detailed proposals; firstly one creating a EU Patent and secondly one dealing with the translation arrangements. Once the legislative proposals are published, then normal EU legislative procedures will be followed.

Could we really have an EU Patent that covers some, but not all, of the EU Member States? How will the objectors to the current language proposals react to such isolation? We have certainly reached a fascinating point in the quest towards the so far elusive unified patent for Europe. 

The EEUPC

As previously reported in InFocus (July 2010), the Court of Justice of the European Union ("ECJ") has been asked to adjudicate on the question of whether or not the current draft proposal for a unified patent litigation system and establishment of a European patent court is compatible with the provisions of the treaties of the European Union.

The proposal is, in nature, an international treaty being negotiated by the EU, its component Member States and a number of third countries (the non-EU countries of the European Patent Convention). The proposed patents court would be a separate body from the ECJ.

The Advocates General Opinion (1/09), presented to the ECJ on the 2 July 2010, concluded that the proposal in its current state was not compatible with the treaties.

The concerns centred on what the Advocates General considered to be insufficient means in the proposal for recognising and ensuring the primacy of European Union law, a linguistic system (based upon English, French and German) which may affect the rights of defence established under EU law, and insufficient means of ensuring the correct application of EU law in relation to European Union Patents by the EPO - for example, any administrative review of a decision of the EPO on the granting of/opposition to a European Union Patent would be carried out by the EPO itself, with no recourse to the Court of Justice.

Of course, whether or not the Court of Justice itself follows the non-binding Advocates General's Opinion remains to be seen (at the time of writing, the decision of the Court of Justice was expected to be imminent). Furthermore, the Advocates General's Opinion made it clear that it was not the concept of a unified patent system per se that was incompatible with the treaties, but rather the proposal in its current form (indeed, the Opinion offers as many potential solutions as it raises objections). So, many commentators remain optimistic. However, it is difficult to see a quick fix to the issues raised by the Advocates General should the Court of Justice take a similar view.

Lawyers