Italy isolated as ten countries unite on patents

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So far there are 10. At least nine EU countries were needed to make an end-run around Italy to create a united patent and protect the design of products sold across their borders. 

This week, ten countries signed a letter to the European Commission to request legislative proposals for a common patent based on "enhanced cooperation" between them. 

The political hardball is meant to get around vehement demands from Rome that Italian be one of the official languages of an EU patent.

The proposal had been blocked in the EU Council of Ministers, which represents all 27 member countries, because votes on language issues must be unanimous.

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.

The letter was signed by Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Slovenia and Sweden. They said they "expect that a large majority of member states is prepared to successfully conclude on the unitary patent protection". 

In recent debates, the United Kingdom and Ireland were also vocal supporters of moving forward.

Ending a decade of talks

For more than a decade, EU diplomats have debated rules for a common patent that would put European companies on a competitive footing with countries like the United States and Japan, where it costs 10 times less file patents than in the 27-country bloc.

Europe needs to simplify the process to protect innovative products, reduce costs and create a judicial system to handle disputes. The single patent is a critical piece of several EU strategies, including the single market and the Innovation Union.

If the proposal goes through, this would mark only the second time that member states have used the side door of 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.

Attempts to reach Italian representatives for a reaction Wednesday (8 December) were unsuccessful, but the country will no doubt make its position clear on Friday (10 December) at a meeting of EU ministers in charge of competitiveness.

When a handful of countries threatened enhanced cooperation at the Council meeting last month, Giuseppe Pizza, Italian secretary of state, said: "This is not possible."

Sharper focus on business

But as the European economy struggles to recover and national governments are forced to restructure their debts and slash budgets, there is a sharper focus on promoting businesses.

Last week, Máire Geoghegan-Quinn, EU commissioner for research, innovation and science, said the lack of a European patent amounts to "a tax on innovation" and prevents companies from doing business in Europe.

Belgium, which holds the rotating presidency of the EU, has pledged to push through legislation for a single patent by the end of its term in December. Belgian Minister Van Quickenborne has worked hard to forge a compromise, and his latest efforts appeared to have swayed a few reluctant members.

His proposals include the following:

  • Companies that accidentally infringe on a patent because it there was no translation in their native language may not be held liable for damages.
  • Funds to pay for the costs of translations would be provided at the beginning of the process.
  • For all patents, regardless of language, a full and manual translation into one other official EU language chosen by the applicant would have to be provided within a 12-year period.

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. 

  • 10 Dec. 2010: EU ministers (Competitive Council) to discuss proposal by ten countries to move ahead on patents by using so-called 'enhanced cooperation' procedure.

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