Parliament to fast-track vote on EU patent

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The European Parliament will tomorrow (27 January) give its first green light to 23-country enhanced cooperation for the European patent, confirming a fast-track approach chosen by the European Commission despite a number of unresolved controversial issues.

The Parliament's legal affairs committee is expected to give its consent to the unusual procedure of enhanced cooperation, which has not yet been proposed on internal market issues and has been used only once before.

The draft report prepared by the chairman of the committee, German MEP Klaus-Heiner Lehne (European People's Party; EPP), states that "enhanced cooperation will not undermine the internal market or economic, social and territorial cohesion and will not distort competition".

An amendment proposed by Italian MEPs Raffaele Baldassare (EPP) and Luigi Berlinguer (Socialists & Democrats) suggests deleting this sentence.

The committee will vote before receiving an opinion from the Parliament's legal service, which is required to assess the "compatibility with the Treaties" of the proposed procedure. The juridical opinion is expected by the beginning of February, but Lehne decided to go ahead with the vote without waiting for the legal advice.

"The legal services of the Commission and the Council have already rejected potential incompatibilities with the Treaties," explained a European Parliament official, potentially paving the way for a negative opinion from the Parliament's services.

"In any case, the vote in the plenary will come after the legal advice," added the official. The EU assembly is indeed expected to express its final say on the issue at its plenary session in mid-February, two months after the procedure was proposed.

This represents an efficiency record considering the usual length of the EU legislative process. Enhanced cooperation has only been used once before, on divorce legislation, and that took several months to be voted through in the Parliament after the Commission had made its official proposal.

The Parliament's fast-track procedure is coherent with the approach chosen by French Internal Market Commissioner Michel Barnier, who waited only a few days after the Council had given its formal backing to bring forward the proposal.

The urgency is in part justified by the fact that a compromise on the EU patent has been the subject of many years of failed negotiations, contributing to a loss of European competitiveness in the global patent market.

Some observers, however, see in the extremely rapid approach to the issue vested interests of German and French industry, which would be most privileged by the proposed trilingual linguistic system for the EU patent instead of a cheaper monolingual regime based on English only.

Pending issues

Unexpected criticism of the current situation came from the Foundation for a Free Information Infrastructure (FFII), an independent organisation championing open standards in information technologies and representing over 3,500 companies in 20 European countries.

"Europe is not only about German industry needs," reads an open letter sent to MEPs. "Enhanced cooperation is the saddest road to choose from a European integration perspective. Everything should be tried to avoid a European Union with member states on different speed lanes and to get a real European solution," continues the letter.

"While the consensus on a Community patent within the acquis has been fragile, the current enhanced cooperation backup solution is a stable coalition of the willing. For this reason it seems difficult to endorse the extreme rushing of Commissioner Michel Barnier and the rubber-stamping attitude of rapporteur Klaus-Heiner Lehne," it reads. 

"The unprecedented super-fast pace would only undermine an opportunity for the members of Parliament to exercise democratic scrutiny," concludes the document.

The independent foundation also underlines that such urgency goes against the potential destructive impact of an expected ruling of the European Court of Justice which could seriously undermine the foundations of the EU patent.

In addition, the FFII raises the issue of compatibility of the European Patent Office's methods with European Union rules. The EPO is not in fact an EU institution, but in the new system would be awarded functions that affect the internal market.

"A strong role for the EPO makes the EU yield any governance influence over its unitary patent," reads the letter.

The FFII suggests giving competences on the EU patent to the Office for the Harmonisation of the Internal Market (OHIM), an EU agency based in Alicante, Spain.

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 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 on linguistic disputes. The EU commissioner in charge of the dossier, Michel Barnier, proposed to maintain English, French and German as official languages for filing an EU patent, triggering angry reactions from Spain and Italy.

On 13 December, 23 states agreed to go ahead with enhanced cooperation on the EU patent. Only Italy, Spain, Cyprus and the Czech Republic opposed the decision.

  • 27 Jan. 2011: European Parliaments's legal affairs committee to vote on enhanced cooperation on EU patent.
  • Beginning of Feb. 2011: Expected publication of legal advice on enhanced cooperation by Parliament's legal services.
  • Mid-Feb. 2011: Parliament plenary to vote on enhanced cooperation for EU patent. 

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