Brussels, 10/03/2011 (Agence Europe) - On Thursday 10 March, the Council of Ministers of the EU adopted the decision authorising enhanced cooperation on the creation of unitary patent protection. Twenty-five member states supported enhanced cooperation. Italy and Spain once again opposed the move, and intend to refer the matter to the Court of Justice of the EU. Enhanced cooperation allows a group of member states to forge ahead on an issue where it has been impossible for all 27 member states to agree. It is a procedure that has only been used once previously by a group of 14 member states wishing to simplify divorce procedures for couples of different nationalities.
There is “agreement on the part of 25 countries for enhanced cooperation on the creation of a unitary patent in Europe”, said Zoltan Cséfalvay, Hungarian Junior Economy Minister, whose country currently holds the Presidency of the EU Council of Ministers . He spoke of a “historic event”.
The enhanced cooperation aims to create a unitary patent, which confers uniform protection across all the member states taking part. The main obstacle to unanimous agreement was the number of languages in which the new unitary patent would be available (hence the need for enhanced cooperation). The linguistic regime which will apply in the new unitary patent system will be based on the one which operates in the European Patent Office (EPO), where the official languages are English, French and German.
Under the European patent system which is currently in force, once a patent is delivered, it must be validated in each of the member states of the EPO and be fully translated into their official languages. The new unitary patent will automatically become valid throughout all EU member states taking part in the enhanced cooperation, in the EPO language in which it was delivered.
The enhanced cooperation remains open to countries not taking part and access to the unitary patent on the territory of participating member states will also be available to businesses from non-participating member states. Under the decision adopted by the Council, enhanced cooperation on creating unitary patent protection seeks to encourage scientific and technical progress and the operation of the internal market.
Italy called for a “pause for reflection” and announced that it was going to refer the decision authorising the enhanced cooperation to the EU Court of Justice, saying it was “because we think that the necessary conditions have not been met” for the development of a European patent which will improve business competitiveness. State Secretary for Economic Development Stefano Saglia said that the issue of language could not be forgotten. Italy had always acknowledged that the creation of a European patent was a move in the direction of innovation and increased competitiveness, but “it is essential that the EU has a document that can be used in all states of the EU”. Italy was against the use, in this area, of enhanced cooperation, which would “sideline some member states”. The Court of Justice opinion on jurisdiction is very clear and touches on a key point of the patent. For the patent to be of use, it must not lead to costs higher than those of translation. Nor must it constrain businesses to lodge appeals with 27 courts, argued Saglia. The Court judgment “should cause us to reflect on the usefulness of the enhanced cooperation”.
Spain said that the decision on enhanced cooperation “will affect the whole of the EU”. Spanish Secretary of State for European Affairs Diego Lopez Garrido highlighted three things: Linguistic discrimination. Enhanced cooperation on linguistic issues is not admissible as this goes “against the spirit of the treaty”. Patents will be translated into French, English and German. A French company will have all patents available to it in French; if the company is Spanish, it will have a Spanish translation of less than 1% of patents, as that is the percentage of patents in Spanish in the EU, Lopez Garrido pointed out. Judicial system. “EPO decisions cannot be referred to the courts, that is what the Court of Justice clearly says”, he said. The whole philosophy on which the Commission proposal is based (use of the Munich Convention and the languages of the Munich Convention) “does not fall within Community law. We have, then, to go back to the treaty. If we want to create a Community patent, it has to be within the scope of the Community” Spain says. It is wrong to say that the issue of the linguistic regime is totally separate from the judicial regime, stated Lopez Garrido. The unitary patent contains a legal section, a linguistic section and a judicial section. “All three have to be dealt with together”, he said. He reproached the Commission for not knowing what it was proposing with regard to the judicial system. “It's a headlong blind rush”, he argued. He also criticised the arrangements on the move to automated translation after a certain time. Respect for the rule of law. Primary law cannot be overtaken by whatever Council majority may exist. “The Court ruling, which completely demolishes the idea of this patent, has to be accepted”, according to Lopez Garrido.
Commission proposals on 30 March. “We want to make progress, not against any country, but for European businesses, in particular the smallest which can no longer bear the cost of the patent”, argued European Internal Market Commissioner Michel Barnier. Unitary protection throughout the EU will be provided in one of the three languages of the Munich Convention. Even companies not located in one of the countries not taking part in the enhanced cooperation (that is, in Spain or in Italy) will, “without discrimination”, be able to use the patent, Barnier said. The Commission will present its proposals for regulations on the linguistic regime and the creation of the title on 30 March. Beyond the language chosen for the legal protection, it will be proposed that two further EU languages (including Spanish and Italian) could be used for the translation “for the purposes of trade, information and communication”. Translations will be manual “until such time as we have high quality electronic translation”, Barnier said to reassure Spain. It was, he said, “a proposal which is politically acceptable, since all languages will be covered, legally sound and economically necessary”.
With regard to matters judicial, the commissioner promised he “will take account of the Court of Justice opinion” in preparing “over the next few weeks” the proposal to be presented on common jurisdiction, “which we need to make the general architecture of the European patent effective”. (L.C./transl.rt)