Cyprus, Greece, Ireland, Italy, Lithuania, Luxembourg and Spain have all lined up to argue against the Commission's plans, insisting they are at odds with EU law.
At an ECJ hearing in May, Spain – which held the rotating EU presidency – and the European Parliament argued that the Commission's proposal was inadmissible, branding it "premature and incomplete," sources said.
The Parliament said it was too soon to discuss a single patent court before MEPs had had a chance to approve the draft regulation on the Community patent, adding that national parliaments may also need to decide whether the proposed court would be in line with their constitutions.
Fourteen countries, including France, Germany, the UK and Belgium – which succeeded Spain at the helm of the EU – backed the Commission's plan, according to legal sources close to the matter.
The shift in competence from national courts to proposed EU patent court was seen as a major stumbling block, as is the enhanced role for MEPs set out in the Lisbon Treaty.
There are also uncertainties on the level of influence Brussels has over the Munich-based European Patent Office, which is not an EU body and has several members from outside the Union.
European Council divided on patent
The latest twist was met with some surprise from patent law experts given that all 27 member states signed off unanimously on the agreement at European Council level last December (EurActiv 4/12/09).
That agreement, brokered by Sweden, noted that the Council's conclusions were "without prejudice" to member states' individual submissions to the ECJ. It also referred to "fundamental legal concerns" from some quarters on the creation of a single patent court.
Despite this, the December text sets out details of how the proposed EU patent court would operate and a timeline for its introduction.
The role of Spain in opposing the court was highlighted by observers given that Madrid held the EU presidency at the time of the hearing and has repeatedly blocked the Commission's efforts to break the deadlock on patent translation arrangements (EurActiv 2/7/10).
EU patent 'dead in the water'
The latest chapter in the long-running legal wrangle over patents comes as the European Commission prepares to launch its innovation plan and drafts an Internal Market Act – both of which will stress the importance of a European patent.
In June, Margot Frohlinger, director of the Knowledge Economy at the European Commission's internal market directorate, told a conference on intellectual property that the EU patent is "dead in the water".
She was quoted as saying that the project is "not in the best shape" and the Commission's own proposals to allow patents to be filed in one of three languages – English, French and German – will not fly.
It would, she said, take a miracle for the Belgian Presidency to rescue the situation. Belgium has said solving the legal and language disputes that have prevented the creation of a Community patent would be the centrepiece of its six-month tenure (EurActiv 24/06/10).
