Ministers of 25 European Union member states have now approved the creation of a single European patent, although Italy and Spain are still refusing to join.
Moves to go ahead to create a region-wide single patent, or "unitary patent protection," were approved by the Council of the European Union last week, and will now proceed under the enhanced cooperation procedure - which allows groups of member states to adopt new rules where unanimous agreement cannot be reached - with the Commission expected to publish draft regulations by the end of this month.
The Italian and Spanish ministers' objections, which have long delayed progress with the initiative, are based on the Commission's proposal that English, French and German should be the official languages for the new system. These have been the working languages of the European Patent Office (EPO) since 1997, but Italy and Spain say this would give British, French and German companies an unfair advantage, and have proposed either that Spanish and Italian should be included among the official languages or that English should be the single reference language. This latter alternative has been rejected by Michel Barnier, the European Commissioner for Internal Market and Services.
Following the Commission vote, officials said that Spain and Italy will be free to join the procedure whenever they wish, while Commissioner Barnier added that all European companies, including Spanish and Italian firms, will be entitled to use the single patent.
The Commissioner also referred to the opinion issued by the European Court of Justice just before the Council vote, which stated that the establishment of a European and Community Patent Court, also included in the Council's proposals, would not be compatible with EU law. The Commission will, within a few weeks, produce a common position with the Council on the issue, "while of course respecting the Court's ruling," said Mr Barnier.
After the Justices issued their opinion, Commission spokesmen said that their decision should have no impact on the enhanced cooperation procedure and that its issuance enabled work to continue on the creation of a unified patent litigation system. "The creation of unitary patent protection is legally distinct from the creation of the European Patent Court," the Commission emphasised.
Italy’s Foreign Ministry welcomed the Court of Justice's opinion and noted that Italy's position had always been that the judges' decision should be sought before examining other aspects of the EU patent regime. There have been suggestions that Italy and Spain could seek an opinion from the Court of Justice as to the legality of using the enhanced cooperation procedure in this case, although observers point out that it has already been declared lawful by legal experts at the Commission, the Council and the European Parliament.
The Council meeting was chaired by Hungary's minister of state for strategic affairs, Zoltan Csefalvay, who said the vote represented "an historic day for innovation and the internal market." The extra costs to European industry created by the current fragmented system are estimated at around 750 million euros a year, he said, and forecast that "a higher-quality, simpler, less costly and more business-friendly system" would encourage more investment in R&D and thus "significantly" increase Europe's capacity for innovation.
However, a leading expert points out that the single patent will also be available to non-European companies. "The new system will enable foreign businesses to protect their ideas throughout Europe in one fell swoop," says Simon Mounteney, a partner at patent and trademark legal firm Marks & Clerk. "Europe's economy won't be the only one to benefit from this move," he adds.