Despite doubts over the legality of the proposed linguistic regime, the European Parliament is expected to give its green light tomorrow (15 February) to using the so-called 'enhanced cooperation' procedure to launch a common EU patent system without Spain and Italy on board.
No significant opposition is expected at tomorrow's Strasbourg plenary vote after the Parliament's legal affairs committee backed the plans with a large majority in January.
Last December, Italy and Spain found themselves isolated when twelve countries decided to go ahead and create a common patent regime based on three languages – English, French and German.
EU ministers are expected to formalise the launch of the so-called "enhanced cooperation" procedure at a 9-10 March meeting of the Competitiveness Council.
The European Commission will then formally table legislative proposals, which are expected to reach the European Parliament in May for a first reading.
But the road to an EU patent is still a rocky one as the two legislative proposals – on the jurisdictional and linguistic regimes respectively – could both run into obstacles.
From a legal point of view, the jurisdictional regime appears to the most fragile. A crucial ruling of the European Court of Justice is expected on 8 March, one day before the Council meeting, at which ministers are expected to confirm the use of the "enhanced cooperation" mechanism.
The original proposal foresees the establishment of a European Patent Court (EPC) to deal with possible cross-border disputes and spare plaintiffs from having file separate lawsuits in every member state where a patent is registered, as is the case now.
However, concerns have been raised regarding the status of the new court. In an opinion issued in July, the Advocates General of the European Court of Justice stated that the new tribunal could be out of step with EU legislation and jurisprudence, declaring the proposal "incompatible with the treaties".
The opinion also condemned the draft proposal due to its linguistic regime, which is based on three official languages – English, French and German. This trilingual system "may affect the rights of defence" of companies based in countries that use a different language, the Advocates General wrote.
"Traditionally, the Court replicates the opinion of the Advocates General in 80% of the cases," an official at the Court of Justice told EURACTIV.
The language conundrum
If the Court were to reject the proposed jurisdictional regime, a completely new scenario could unfold, sending the Commission back to the drawing board and delaying the entire legislative process.
In the European Parliament, opposition by MEPs from Spain and Italy could gather momentum and attract members from other countries.
The initial idea of introducing a system based on English only could resurface as concerns about jurisdiction are also based on linguistic grounds. Indeed, the English-only regime – backed by Italy and Spain – would not only be cheaper and simpler, but also fairer, as it would avoid giving French and German companies a competitive advantage.
However, if the Court were to stick to the opinion of the Advocates General, a multilingual system based on all the EU's official languages may be the only option left. And after years of talks, this would essentially mean negotiations were back at square one.
Moves to develop a single patent system for the EU began in 2003, but progress has been hampered by linguistic, technical and legal difficulties.
The cost of filing and protecting patents in Europe is substantially higher than in the US and Japan, and business organisations have consistently complained about the fragmented and inconsistent decisions handed down by European courts.
Companies often have to fight legal actions in several European countries at once, and national courts regularly come to conflicting conclusions on identical cases. A single patent court would make litigation cheaper and more predictable.
The Commission presented in July a proposal to end a deadlock that had mainly been caused by linguistic disputes. The EU commissioner in charge of the dossier, France's Michel Barnier, proposed to maintain English, French and German as the official languages for filing an EU patent, triggering angry reactions from Spain and Italy.
However, the day after the proposal was published, the Advocates General of the European Court of Justice issued an opinion saying the jurisdictional regime proposed for the EU patent was not compatible with the EU treaties, also on the grounds of linguistic issues.
With the deadlock persisting on linguistic issues persisting, 12 member states agreed to go ahead with enhanced cooperation on the EU patent last December. The Commission immediately supported the plan, which has thus far only been applied once and never for internal market issues.
- 15 Feb. 2011: European Parliament plenary to vote on enhanced cooperation for EU patent.
- 8 March 2011: European Court of Justice expected to rule on jurisdictional regime of EU patent.
- 9-10 March 2011: EU Competitiveness Council.
- European Commission:Proposal for enhanced cooperation(14 Dec. 2010) [FR] [FR] [DE]
- European Parliament:Legal Affairs Committee vote on EU patent(27 Jan. 201)
- European Court of Justice:Opinion of Advocates General on EU patent jurisdiction(2 July 2010)
EU Actors positions
- Foundation for a Free Information Infrastructure (FFII):Open letter against enhanced cooperation(19 Jan. 2011)
- FFII/April/ESP:Appeal against EU patent(31 Jan. 2011)
- EURACTIV Slovakia:Parlament odsúhlasil vznik celoeurópskeho systému patentovania
- EURACTIV Germany:Preisgünstiges EU-Patent in Reichweite
- EURACTIV Hungary:A Parlament tovább er?lteti a közös szabadalom ügyét