An EU patent without Italy? Member states turn up the heat


Italy found itself in a political squeeze on Thursday (25 November) as several key European countries moved to create a unified patent to protect the design of products sold across their borders.

After more than a decade of frustrating negotiations to draft a single patent for the 27-nation bloc, a group of countries have decided to go it alone.

Sweden, Germany, the United Kingdom, Ireland, the Netherlands, Slovenia and Estonia said they will formally ask the European Commission to help them write a common patent agreement based on "enhanced cooperation" between those countries.

More EU member states are welcome to join the pact.

It was a bold and rarely used tactic to pressure Italy to drop its demand that Italian be one of the official languages of an EU patent. Without Italy's vote, the EU Council of Ministers – which represents the bloc's 27 governments – did not have unanimous support behind a proposal for an EU patent that would be translated into English as well as French or German, the three working languages of the Union.

"It's clear we could not reach an agreement in the foreseeable future," said Swedish Minister for Enterprise and Energy Maud Olofsson. "It would be unfortunate for European industry if we didn't use enhanced cooperation" to craft some form of common patent, she added.

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.

The single patent is a critical piece of several EU strategies, including the single market and the Innovation Union.

"I don't think we can afford the luxury of not growing competitively," said Frenchman Michel Barnier, the EU's commissioner for the internal market and services.

He said he would act rapidly on the request for enhanced cooperation on a new patent, and present a proposal to the Competitiveness Council at its meeting on 10 December.

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.

Italy ready to fight

This time, however, Italy appears ready to fight any proposal about enhanced competition on patents.

"This is not possible," said Giuseppe Pizza, Italian secretary of state, claiming such action would undermine the internal market of the EU.

Surprisingly, Spain is no longer insisting that Spanish also be an official patent language, while Poland took Italy's side and requested another round of negotiations.

France, the Czech Republic and Malta all said they were prepared to explore and analyse a Commission plan for enhanced cooperation on a patent.

Such a patent would need the participation of at least nine member states. It would have to be approved by a qualified majority in the Parliament and the Council, but only participating members would be allowed to vote in Council, according to legal staff.

"It's high time for those who wish to move forward with a higher form of cooperation to do so," said Peter Hintze, a German secretary of state. "The world is changing so quickly and the speed of change is accelerating. We cannot wait."

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, including Spain and Italy.

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

At the last Competitiveness Council on 10 November it was clear negotiations had hit a serious impasse.

  • 10 Dec.: Competitiveness Council to discuss enhanced cooperation proposal.

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