'Cooperation' Agreed On EU Patent

by Ulrika Lomas, LawAndTax-News.com, Brussels

17 December 2010

Following the inability last month to agree on pan-European patent legislation between European Union (EU) member states, the European Commission (EC) will present a proposal opening the way for some countries to proceed on the basis of 'enhanced cooperation'.

Comprehensive EU patent legislation would allow innovators to apply for a single patent covering the entire EU territory. In December 2009, member states unanimously adopted conclusions and agreed the key elements to bring about a single EU patent.

However, further negotiations broke down as the EC disclosed new proposals seeking to build on the three language system at the European Patent Office (EPO) and which, if adopted, would drastically reduce existing translation costs. The EC proposed that EU patents would be examined and granted in one of the official languages of the EPO: English, French or German.

Not all EU member states felt able to proceed on that basis and attempts to obtain unanimity in the Competitiveness Council were abandoned. In particular, Italy, Spain and Poland are reported to have said that such a system might favour French and German businesses, and to have suggested that English, as the major business language, should be the only language used.

Following the breakdown of talks, several member states indicated their willingness to proceed using the possibility under EU rules for 'enhanced cooperation'. Those rules allow those countries of the EU that “wish to continue to work more closely together” to move forward “at different speeds and/or towards different goals.” The use of such a procedure would establish a patent, valid in all participating countries, which could be obtained with a single application.

The EC’s proposal follows a request from 12 member states (Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, The Netherlands, Poland, Slovenia, Sweden and the United Kingdom), but would leave the possibility to others to join at a later stage.

The proposed decision to authorise enhanced cooperation on unitary patent protection needs to be approved by the EU's Council of Ministers by qualified majority, after the consent of the European Parliament. The EC will produce its detailed proposals next year.

"Filing for patents in Europe is a costly and complicated affair, making it available only to those companies who have deep pockets," said Michel Barnier, the European Commissioner for Internal Market and Services. "The unacceptable reality is that on average innovators validate and protect their patents in only 5 of the EU's 27 member states because of the high costs.”

“European inventors can afford no further delay,” he continued. “This is why the EC proposes that some member states should be able to move ahead for a unitary patent protection, and I hope that over time all member states will join this new system. In any case, companies will not be discriminated against and will be able to apply for an EU patent under equal conditions, no matter what their countries of origin."

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