Italy, Spain could drop opposition to EU patent

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Agreement by EU ministers today (5 December) on outstanding issues surrounding a unified EU patent would pave the way for the Polish presidency to claim success in the venture at a signing ceremony in Warsaw on 20 December, amid mounting optimism that the new regimes in Spain and Italy could drop their opposition to the idea.

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 EU single market.

The proposals recognise English, French and German as the patent's official filing languages but Rome and Madrid feared this would give an unfair advantage to companies from the 'big three' jurisdictions.

Spain and Italy taking time to consider

Diplomats in Brussels are still awaiting clear instructions from incoming governments in the two countries. They stressed that this does not indicate a change of mind, but other member states believe the absence of continued strong vocal opposition – especially since legal action is under way – signals a shift in position.

If one of the two countries relented, it would leave the other in the awkward position of being the single member of the EU frozen from the new system, which could be up and running by 2014.

Ministers meeting for the Competitiveness Council will this afternoon discuss outstanding political issues affecting the patent.

At stake in the discussions, where Spain and Italy will be present though not active participants, are:

  • Where to locate the central patent court, with London, Munich and Paris the candidate cities;
  • Where to locate an appellate body, for which Luxembourg is highly tipped;
  • The location of an arbitration centre, for which Ireland, Slovenia and Portugal are vying;
  • The relative powers and financing of all these bodies and the system itself; and
  • Transition procedures to govern the introduction of the new system.

Before the agreement on enhanced co-operation had even been reached, on 8 March, the European Court of Justice ruled that the creation of a Community Patent Court would not be compatible with the provisions of EU law, thereby casting a shadow of doubt over plans to establish a Europe-wide patent system.

Signing ceremony to seal ‘Warsaw Accord’

The Poles with EU officials have been working hard to resolve legal difficulties with the regulations needed to create a patent system and believe that they have found wording that would meet the concerns of the court.

Last week the Parliament's legal affairs committee agreed with the Polish presidency negotiators on revisions to draft regulations to make the system cheaper and easier for smaller businesses to use, which was one of Parliament's concerns with the scheme.

The deal still needs final approval by the Parliament which could come early next year, but the Polish presidency is hopeful that after today's meeting it will be able to set up a special signing ceremony in Warsaw on 2O December.

This would enable the Poles to stamp their presidency – dominated by the crisis in the eurozone – with a signal enduring achievement, since they want the patent system to be known as the 'Warsaw Accord'.

On March 11 2011, ministers from 25 member states decided to go ahead with plans to introduce a common system for registering patents, without Spain and Italy, which opposed the proposed language regime.

The Italians and Spanish were afraid that such an approach would give an unfair advantage to companies based in France, Germany and the United Kingdom, the three official languages chosen for the regime.

The 25 agreed to use the so-called 'enhanced co-operation', which allows a group of at least nine EU countries to adopt new common rules among themselves, in areas where an EU-wide agreement cannot be reached.

The two countries lodged a complaint with the European Court of Justice, arguing that using the 'enhanced co-operation' mechanism for the patent sector is contrary to the spirit of the single market, because it tends to create division and commercial distortion.

  • Today: Competitiveness Council in Brussels
  • Dec. 20th: If ministers agree political issues today, signing ceremony Warsaw to mark patent accord in Warsaw

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