European Commission authorises 'enhanced cooperation' on unitary EU patent

16 December 2010

European Commission authorises 'enhanced cooperation' on unitary EU patent

The European Commission has today presented a proposal for the creation of a unitary patent system in the EU. The proposal allows some, but not all, EU Member States to move forward with the proposed unitary EU patent, under the rarely used 'enhanced cooperation' mechanism provided for in the EU treaty.

Enhanced cooperation allows nine or more countries to move forward on a particular project, as a last resort if no agreement can be reached by the EU as a whole within a reasonable period. Other Member States can then opt to join at any stage. A group of twelve Member States (Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, The Netherlands, Poland, Slovenia, Sweden and the United Kingdom) recently wrote to the European Commission requesting permission to proceed with an EU patent on this basis, after the latest attempts to reach unanimous agreement on language aspects of the proposed system failed.

The creation of a unitary patent for the whole of the EU has been a goal of the European Commission for many years. However, disagreements between Member States on aspects such as litigation and language requirements meant that none of the previously proposed legislation ever came into force.

Some progress was made recently when, in December 2009, Member States agreed to proposals for an enhanced patent system in Europe. These included key elements such as the establishment of a new patent court for the EU, but did not reach any conclusions on language issues. These once again turned out to be the stumbling block, with proposals from the Commission on translation requirements, put forward in June 2010, facing strong opposition from some Member States, and ultimately failing once again to get the required unanimous support of the EU's Council of Ministers.

The new proposal, if it is agreed, will allow the creation of a single patent covering some, but not all, EU Member States. Further Member States could join the new system at any time. As well as the twelve States who wrote to the Commission, many other countries are thought to support the idea of enhanced cooperation.

The proposal still needs consent from the European Parliament and approval by a qualified majority of the EU Council of Ministers before it can come into force. More details of the proposed system will be announced in 2011, including proposals on translation requirements. These will build on the existing system at the European Patent Office and the unitary patent will be examined and granted in one of the existing official languages of the EPO (English, French or German).

A unitary EU patent may have the advantage of reducing the cost to patentees, since under the present system a granted European patent must be validated separately in each individual country where it is to come into force. This can involve significant additional translation and administrative costs, although it is worth noting that the burden of the former has been greatly reduced by the introduction of the London Agreement .

A possible disadvantage of a single unitary right is that if it is lost (e.g. if it lapses, or is revoked by a court) then protection is lost for all States which it covered. Under the current system a European patent effectively splits after grant, into completely independent national rights, so revocation or lapse of the patent in one country does not result in loss of protection in any of the others.

The Commission press release can be found here.

If you would like any further information, please ask your usual Mewburn contact.

Published on 16th December 2010

 
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