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.