23 countries join forces on patents: Will some opt out?

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By breaking ranks with the remaining four member states on creating a common patent, the larger group may ultimately force the holdouts to join them or be left behind.

A forceful number of countries – 23 members of the European Union – said they will work together to create a single patent system to protect the design of products sold across their borders. 

After debating rules on a common patent for a decade, a majority of countries said on Friday (10 December) that there appeared to be no way to reach a unanimous vote on the issue of languages. 

So they are moving forward under a rarely used provision of the Lisbon Treaty known as "enhanced cooperation".

Eleven of the countries signed letters formally requesting the European Commission to draft a proposal based on the most recent compromise on the table. Another dozen said in the public debate that it was time to move forward through enhanced cooperation.

'We need to be pragmatic': Barnier

The Commission's proposal will be presented to EU ministers in charge of competitiveness on Tuesday (14 December).

"We need to look to the future, we need to be pragmatic," said Frenchman Michel Barnier, the EU's commissioner for the internal market and services. "We need to move forward with as many member states as possible. I hope all member states sign on to this."

The move increases pressure on Italy and Spain, the most vocal opponents, as well as two hesitant members. The Czech Republic called for an impact assessment of enhanced cooperation, and Cyprus said it still hoped for a unanimous decision.

Europe needs to simplify the process to protect innovative products, reduce costs and create a judicial system to handle disputes. European companies spend 10 times more on patents than their American and Japanese rivals. And a single patent is a critical piece of several EU strategies, including the single market, industrial policy and the Innovation Union.

The most recent plan on the table calls for an EU patent that would be translated into English as well as French or German, which together are the three working languages of the Union. There are also complicated provisions for manual and machine-generated translations into native languages.

Privileged languages?

But that has drawn the ire of Italy, which wants an English-only patent system, and Spain, which says the plan discriminates against Spanish companies.

"They would be privileged languages and give rise to other privileges too," said Diego Lopez Garrido, Spanish state secretary for EU affairs. "It would inevitably give rise to discrimination and divide the Union."

This is only the second time that member states have used enhanced cooperation to sidestep blocking members. In July, 14 countries – including Italy, Spain, Germany and France – agreed to simplify divorce rules for couples of different nationalities.

At least nine countries are needed to create a pact for enhanced cooperation, and on the patent issue there are 11. The formal requests were signed by Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Slovenia, Sweden and the United Kingdom.

The concerted action marked a victory for Belgium, which pledged to push through a common patent before its six-month presidency ends this month. The rotating president's scepter will pass in January to Hungary, which will take up the fight at a Council meeting in February.

"We will do our best because that will contribute to Europe's competitiveness," said Hungarian Minister Zoltán Cséfalvay.

The European Commission presented its proposal for an EU patent a decade ago, but negotiations have been bogged down by linguistic, technical and legal difficulties.

The cost of filing and protecting patents in Europe is 10 times higher than in the US and Japan, and business organisations have consistently complained about fragmented and inconsistent decisions handed down by European courts. 

Companies often have to fight legal action 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 the deadlock over linguistic disputes. The EU commissioner in charge of the dossier, Michel Barnier, proposed to maintain English, French and German as official languages for an EU patent but to allow paid-for translations of patents filed in other EU languages. However, this is opposed by other member states, most notably Italy.

The Belgian Presidency said overcoming legal and linguistic problems would be a top priority during its six months at the EU's helm. A number of compromise proposals have been circulated and five Competitiveness Councils have been scheduled during the six-month presidency, which ends in December. 

  • 14 Dec.: Commission to present proposal for enhanced cooperation at Competitiveness Council.

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