Single patent hits new barriers

Both arms of the plan to establish a single EU patent face further compromise this week, with Italy and Spain appealing to the European Court of Justice about the languages that will be used, and the Commission being forced to scale back ambitions to set up a single court to deal with patent claims.

Italy and Spain are claiming linguistic discrimination and arguing against the use of the Enhanced Cooperation procedure, under which 25 of the EU’s 27 member states are pursuing plans for a single patent. The procedure allows a group of member states to adopt new common rules when a unanimous EU-wide agreement cannot be reached.

Italy argued this week that the use of enhanced cooperation in this context creates, “a negative precedent in the European integration process.” In a statement, the Italian Ministry of Foreign Affairs said, “Enhanced cooperation on the issue of patents runs counter to the spirit of the single market, because it is liable to create divisions and distortions within this market, to the detriment of our enterprises.”

Member states resorted to Enhanced Cooperation following Italy and Spain’s objections to the proposed languages in which the future single patent would be valid, namely English, French and German, as the official languages of the European Patent Office.

The Spanish government said this week that this, “Discriminates against Spain, its language and Spanish companies, violating one of the fundamental values of the European Union, that of non-discrimination.”“

Italy’s aim in submitting the appeal is to defend the values and goals of the [European] Union against the attempt to define a hierarchy of powers and values, in violation of the principles of equal dignity and respect for member states’ linguistic and cultural diversity,” the Italian Ministry of Foreign Affairs said.

Barnier: enhanced cooperation is not discriminatory

In response to the appeals by Italy and Spain, the European Internal Market Commissioner Michel Barnier said, “It’s up to the Spanish and Italian authorities to make their own decisions. But I am confident that the enhanced cooperation plan put forward by the Commission is not discriminatory. We are certain that Italian and Spanish businesses will not suffer any discrimination.”

Barnier went on to say that he hopes Italy and Spain would ultimately join the enhanced cooperation. “It would be in the general European interest,” he said.

Geert Glas, a partner in the Intellectual Property/Information Technology department of the law firm Allen & Overy in Brussels, pointed out that there is little case law on the enhanced cooperation procedure, which has only previously been used in the very different context of divorce law. “It’s a road rarely travelled, so no-one has much experience with this mechanism,” Glas told Science|Business.

Nonetheless, Glas thinks Italy and Spain’s attempts to stop the single patent going ahead are unlikely to succeed. “From a legal point of view, it looks like the plan of the 25 will go ahead and prevail,” he said.

The matter will be chewed over yet again by ministers at an extraordinary Competitiveness Council devoted to the creation of unitary patent protection in Luxembourg on 27 June.

The move by Italy and Spain adds to the legal complexity in which the single patent is mired. On 8 March the European Court of Justice ruled the current plans for a single court to deal with patent disputes were incompatible with EU law (European Patent Court wouldn’t be legal).

As a result, the European Commission was forced to redraw the proposal. This week it put forward a so-called “non-paper”, which was discussed by member states at Competitiveness Council in Brussels.

The non-paper suggests the main features of the planned European and EU Patents Court should be maintained, but that it should only have jurisdiction for member states. In other words, Chinese, US, Korean or Indian companies for example, would not be able to take a patent dispute to the court.

The Commission also suggests there should be a guarantee that the unified patent court operates entirely within the judicial system of the EU, meaning that if a patent court judgment is at odds with EU law it could be challenged at the Court of Justice.

“They’ve scaled back their ambitions, but by having accepted to do this they may have saved the project,” Glas said. “It’s less revolutionary, less innovative and less ambitious. But it may well now be workable,” he added.

The non-paper also says the patent court would have exclusive jurisdiction over civil litigation related to infringement and validity, for both traditional European patents and those granted under the single patent. “Limiting the jurisdiction to the unitary patent protection could lead to the establishment of two different common courts in the area of European patents. Such duplication would not be reasonable, in particular given the limited number of competent judges and the risk of contradictory judgments,” the Commission said.