Ministers meeting for an Extraordinary Competitiveness Council are set to adopt two regulations which will approve the creation of a unitary patent system, without Italy and Spain.
The proposals recognise English, French and German as the patent's official filing languages but Rome and Madrid fear this would give an unfair advantage to companies from the 'big three' jurisdictions.
In May, Italy and Spain complained to the European Court of Justice against the use of the so-called 'enhanced cooperation' procedure for the patent, which allows a group of countries to go ahead without the approval of all 27 EU member states. They claimed the move went against the spirit of the single market.
The Council, which represents the EU's member states, and the European Commission believe that the current action before the court need not delay the introduction of the unitary patent.
A Commission official told EurActiv: "The Italian and Spanish court application does not have any effect [on the enhanced co-operation procedure]. We think that the legal conditions required for the procedure were met and we would not have made a proposal if we had any doubts about that."
If, as expected, the ministers approve the rules on Monday, then the regulations will be sent to the European Parliament for final approval.
Parliament set to support proposals
The Parliament's legal affairs committee discussed the two regulations last week and the rapporteur, Italian MEP Raffaele Baldassarre (EPP), afterwards told EurActiv that the committee substantially agreed with the regulations (see interview).
He said: "There are no conditions in place enabling the enhanced co-operation to be blocked whilst the legal action is pending […] There are no time delays envisaged on the process of accepting the proposals in the Parliament."
Baldassarre is one of a number of high-profile figures from Spain and Italy who have cast doubt on the wisdom of their home governments' legal action against the enhanced co-operation.
Like Baldassarre, Enterprise Commissioner Antonio Tajani – who also opposes the legal action – stems from the same centre-right People of Freedom party as Franco Frattini, the Italian foreign minister spearheading Italy's opposition to the unitary patent.
Giampaolo Galli, the director-general of Italian employers' group Confindustria, has also spoken out against the court case.
On the Spanish side, Andreu Mas-Colell, minister of the economy of Catalonia, told EurActiv: "We [Catalonia] have no problem with the enhanced co-operation […] from Spain most patents were submitted [in 2001] in English, which means that Spanish business and research feels comfortable with using the English language."
Spain, Italy will take legal action against parliamentary decisions
The Spanish and Italians remain defiant, however, and this week told EurActiv that further legal action would follow if the regulations were approved by the Parliament.
Both countries will send delegates to the Extraordinary Competitiveness Council meeting in Luxembourg, where they will not participate in the vote.
In relation to high-profile opposition from compatriots, one EU diplomat told EurActiv: "The Court of Justice will make its decision on the basis of legal arguments, not on the basis of politicians."
He added: "On Monday, Italy will say that the enhanced co-operation is discriminatory and not an economic initiative at all." He added: "Once the two regulations have been adopted by the Parliament, we will attack them in the court."
A spokeswoman for the Spanish government told EurActiv: "The Spanish legal service is still considering whether it believes that it is legal for the member states to pursue the enhanced co-operation while the case is before the court in Luxembourg."
She added: "When the two regulations are approved [by Parliament] Spain intends to appeal to the Court."