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Europe-wide patent advances

It was expected, but still a relief for promoters of European innovation. Yesterday, the European Parliament voted in favour of a common EU patent system, under a so-called enhanced cooperation procedure.

A common EU patent, valid in all EU countries, may sound like a common-sense idea. But attempts to create such a system has been blocked for many years, primarily because some countries (like Italy and Spain) insist that a common patent would need to be translated into all EU languages. This would make it too expensive.

Consequently it proved impossible to get the required unanimity for a common system among the EU’s 27 member states. So in December, twelve of them proposed taking advantage of the enhanced co-operation procedure which would allow the creation of an affordable EU patent system limited to just those countries willing to compromise on the language issue. Those in disagreement could remain outside, but with the option of joining in later.

The EU has only resorted to the enhanced cooperation procedure once before – for the 2010 divorce rules.

Currently, national patents can coexist alongside a European patent, issued by the European Patent Office, a non-EU body, but the system is complex, expensive and infringements are hard to track.

The European Council of Competitiveness Ministers is expected to formally adopt the decision to use an enhanced cooperation procedure when it meets on 9-10 March. Then the European Commission can put forward specific legislation governing a common patent and enabling limited translation requirements.



  1. Report this comment

    Jim Kinnier Wilson said:

    Alison, this is very good news and shows some sense by the legislators, if not from the relevant, national politicians.

    However, as a patent lawyer, I should point out that whilst the European Patent office handles many of the procedural aspects of the process for granting patents (and this makes the procedure centralsised and cheaper), the EPO approves patents for grant, but does not itself grant them.

    Following approval for grant, the applicant then has to select which European countries it wishes to have a patent in, and must then comply with the particular national requirements for those national patent offices, including translating the full patent and/or its claims; national procedures vary greatly.

    The result is a bundle of parallel, national patents – one in each selcted country – each with the same text and breadth. It is this validation process that is the most expensive: selecting all member states can result in bills in excess of Euro 50,000.

    I’d also comment that it is not the patent system that makes infringments hard to track; that is in many cases down to the nature of the infringer who does not want to be caught! A new single patent will not make it any easier to track infringements, but it should make a considerable reduction in the cost of getting pan-European patent protection which can only be a bonus for Europe’s struggling innovators.

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    Miguel Orozco said:

    Jim, thanks for the useful clarification. Another one for Allison: In fact,

    Spain has proposed that if the cost of validation is the main problem, then the EU should go for an English-only system, arguing that while Shakespeare’s tongue is today’s ‘lingua franca’, there is no reason whatsoever to privilege German and French over Spanish, a much more widely spoken language.

    Secondly, the ‘enhanced cooperation’ approach still faces many hurdles: First of all, the EU Court of Justice is to rule on March 8 on the proposed system, and there are 80 % chances that it declares it illegal. Besides, the EU Treaty states clearly that the language system can only be adopted by unanimity. Italy and Spain are going to challenge the ‘enhanced cooperation’ in Court, probably on those grounds.

    It seems that the EU Patent is not for tomorrow.

  3. Report this comment

    Miguel Orozco said:

    Update: As I anticipated in my February 17 posting, the EU Court of Justice has just issued an opinion declaring the European and Community Patent Court illegal under EU law. Next Thursday, EU ministers in charge of Competitivity hold a meeting meant to give the go-ahead to the EU patent idea. It is uncertain what the ministers may decide: either to ignore the ruling, to re-launch the whole enhanced cooperation (25 out of 27 member States) procedure without the Patent Court… or to re-launch the negotiations with Spain and Italy for a system involving the 27.

    The Court opinion is available here: under Avis au titre de l’article 300, paragraphe 6, CE)