The EU patent: countries break ranks in search of unity

Via the IPKat's friend Stephanie Bodoni (Bloomberg) comes news, fresh from the very heart of Europe, that the political will to sort out a new European Union-driven patent system is being taken a step further.  According to this charming and impeccable source:
"France, Germany and eight other nations pushed to create a Europe-wide patent system ... leaving out those countries that rejected the plans over language issues.

EU nations last month failed to break a deadlock on creating a region-wide system over  isagreements on what languages should be legally binding. Belgium, which holds the rotating EU presidency until the end of the year, “has tried its utmost to find a compromise” for an EU-wide patent, the 10 countries said in a letter to the European Commission.
“It is clear that the objective of the creation of a unitary patent protection in the territory of the EU cannot be attained within a reasonable period of time by the Union,” the countries said in the Dec. 7 letter to Michel Barnier, the EU’s internal-market commissioner.
Attempts to reach an agreement since 2000 have faltered over the language issues. The 27 EU nations today share 23 official languages [Merpel wonders whether "share" is the right word here,given what the 27 nations do with their languages] and numerous compromise proposals have failed to satisfy political demands or risked increasing translation costs for companies.
“We are ready, we are prepared, to start the procedure” for creating a more harmonized EU patent system, Barnier told reporters in Brussels today. “The commission will present proposals on the future content of a single protection for patents across the EU.”  The new plans ... will be based on the latest compromise proposed by Belgium, said Barnier. “Many more” than the 10 countries that signed the letter will join this so-called enhanced cooperation system, he said. The closest thing to a European Union-wide patent today is for companies to apply for a patent with the European Patent Office, which isn’t part of the EU and has 38 member countries. The patent then breaks up into a bundle of patents which companies must defend in each individual country.
...S pain was among the main opponents to the latest compromise proposals, rejecting the idea to make English, French and German the official languages of a new EU patent system. Spanish EU Affairs Minister Diego Lopez Garrido on Nov. 10 told EU ministers at a meeting in Brussels that the plans discriminated against the Spanish language. Spain supports an English-only system. 
EU ministers will meet again in Brussels on Dec. 10 to discuss the new plan. The letter to Barnier was signed by France, Germany, Estonia, Denmark, Finland, Lithuania, Luxembourg, the Netherlands, Slovenia and Sweden".
Previous recent posts here, here, here and here. Further developments are keenly awaited.
The EU patent: countries break ranks in search of unity The EU patent: countries break ranks in search of unity Reviewed by Jeremy on Wednesday, December 08, 2010 Rating: 5


  1. I think it's worth posting links to both the Letter of the Ten and Italy and Spain's joint answer:

    The latter deserves the Chutzpah Nobel just for this paragraph:

    In this sense, it is difficult to consider the barely five months that have passed since the Commission's presentation of its proposal as a reasonable period of time for reaching an agreement on such a relevant economic, legal, and institutional issue. Moreover, the Council has yet to analyse other possible language regime options, since throughout this short period of time we have mainly limited ourselves to insisting on the proposed formula, with certain transitory amendments.

    (The 35 previous years obviously don't count for Messrs. Zapatero and Berlusconi...)

  2. The first commenter's links were very helpful. While we do need some progress after 35 years, I wonder whether this move for enhanced cooperation will bring progress. The proposal is still based on an Article 118 TFEU based framework, which will result in a single patent for the collective of participating states (i.e. not a bundle patent for the individual states, but a single patent for the collective of participating states).

    This implies that before the EU regulations for the enhanced cooperation can enter into force, we first need a litigation system that would equally apply to this collective of states.

    For patents, industry generally cannot accept a solution like the Community trademark courts: a national court issues EU-wide decisions on validity and enforcement.

    So, before the EU patent regulations based on Article 118 TFEU can enter into force, we would need to await ratifications by all participating states for a patent litigation treaty (e.g. the draft EEUPC agreement currently being examined by the CJEU).

    Denmark is among these participating states, and Denmark will either need a 5/6th majority in its parliament or a referendum before it can ratify the patent litigation treaty.
    Should Ireland join the enhanced cooperation, a referendum is clearly needed.

    The letter from the 10 states refers to the general approach on the proposal for a Regulation on the EU Patent adopted by unanimity on 4 December 2009. This general approach requires an EPC amendment, which needs to be ratified by no less than 38 states. If some EPC states are late in ratifying this EPC amendment, they may drop out of teh EPC system.

    The general approach is based on an EU designation in an EP application.
    However, most EP applications are PCT applications, so that also the PCT should be amended so as to make this EU designation possible. For a PCT amendment, 142 ratifications are needed.

    The above overview illustrates that the currently chosen path is far from easy and straightforward, so that the EU patent for the states that participate in enhanced cooperation based on Article 118 TFEU may very well be something for the next generation.

    It would make much more sense to rethink the architecture of the EU patent system, so as to merely arrange for a one-stop-shop post-grant administration by the EPO for EP bundle patents. This would only require an EU harmonisation of national laws on granted EU patents. No PCT or EPC amendment is needed, and there is no need to await ratifications of a patent litigation treaty either (although it would definitely improve things if as many states as possible would join a high-quality and efficient common patent litigation system).
    All we would need is one EU regulation based on Article 114 TFEU, which does not require unanimity.

  3. The second commenter raises some interesting issues, but one possible red herring.

    No amendment to the PCT appears necessary to effect the EU patent. As the EU patent is to be through the EPO the EU does not need to be a member of the PCT since the states of the EPO already are. The EU patent will only spring into existence once the European patent is granted - long after the PCT system has dealt with it.

  4. I think that Anonymous@11:23:00 has a few things wrong:

    The proposal is still based on an Article 118 TFEU based framework

    No. No offence meant, but this Anonymouse appears to have a personal obsession with Art. 118 TFEU. Art. 118 explicitly relates to "uniform intellectual property rights protection throughout the Union". Therefore, it clearly does not apply to a case of "enhanced cooperation" (which is governed by Arts. 326-334 TFEU, invoked in the Letter of the Ten).

    For patents, industry generally cannot accept a solution like the Community trademark courts: a national court issues EU-wide decisions on validity and enforcement.

    Why not? Please elaborate.

    The letter from the 10 states refers to the general approach on the proposal for a Regulation on the EU Patent adopted by unanimity on 4 December 2009. This general approach requires an EPC amendment, which needs to be ratified by no less than 38 states.

    The "general approach" does indeed refer to the EU joining the EPC, and to an amendment to the EPC being necessary for this (don't ask me why this amendment wasn't already made in the EPC 2000). However, it is a general approach, a draft. I may be wrong, but it appears to me that Part IX of the EPC would allow a joint designation of the EU states within the "enhanced cooperation" group even without the EU joining the EPC, and without touching the EPC (or the PCT, for that matter). Certainly, this is not the "communautaire" way of doing things, but if the enhanced cooperation has been called for it is just because the "communautaire" approach isn't working. It would certainly be self-defeating to try to sail around Italy and Spain's veto in the EU, to then find it again in the process of amending the EPC.

    We should perhaps wait for the formal proposal that the Commission will presumably table tomorrow before rushing judgment. I wouldn't be surprised if the EU's accession to the EPC was no longer necessary in this proposal.

    The biggest obstacle will indeed be how to arrange for litigation, in particular without triggering the Danish and Irish constitutional locks (or the British Conservatives' pre-election sovereignity pledge, although English students are finding out right now the value of pre-election pledges in a coalition government). But I'm sure that powerful legal minds are working on this right now. The Advocate General already gave a few clues in his opinion...

  5. As to Meldrew's comment: if the EPO grants a patent for PCT states, there is indeed no problem whatsoever.
    However, the idea underlying the envisaged system is not a patent for EU states that are PCT states, but a patent for the EU as such (or with enhanced cooperation: a patent for a truncated EU as such). That's why the draft EU Patent Regulation asks for an EU designation.

    In view of that need for an EU designation, which need results from using Article 118 TFEU, not only the EPC should be amended so as to make such a new EU designation possible (as currently only EPC states are designated in an EP application, and the EU is not an EPC state), but also the PCT should be amended so as to make an EU designation possible (as currently only PCT states are designated in a PCT application, and the EU is not a PCT state)

  6. The proposal is still based on an Article 118 TFEU based framework

    No, it isn't. Art. 118 TFEU relates to the protection of intellectual rights throughout the Union. Now we are talking of Arts. 326-334 TFEU governing "enhanced cooperation", and this is a different ball game.

    In particular, I believe that the "enhanced cooperation" countries may use a joint designation under Part IX of the EPC without the EU joining the EPC, and thus obviating the need for a revision of the EPC (never mind the PCT). Most of the rest of the "general approach" can survive. I'd advice to wait until the updated proposal of the Commission (presumably tomorrow) before rushing judgment.

  7. As to whether Article 118 TFEU is still used: Articles 326 - 334 TFEU (and Article 20 TEU) are purely procedural provisions that may help to bypass an adoption requirement mentioned in another TFEU provision, such as the unanimity requirement of Article 118(2) TFEU, by allowing a measure to be still adopted under Article 118 TFEU notwithstanding absence of unanimity if the measure only applies to a subset of EU states, in which subset there is unanimity on a certain solution for translations.

    No measure can be adopted just based on Articles 326-334 TFEU and Article 20 TEU; it is always the combination of the regular TFEU provision dedicated for the proposed measure (in the present case Article 118 TFEU for EU IPRs) and Articles 226-334 TFEU and Article 20 TEU.

    So, with the enhanced cooperation that is currently being proposed for EU patents, the regulations will still be based on Article 118 TFEU, in combination with Articles 326-334 TFEU and Article 20 TEU.

    As is clear from the letter from the 10 states referred to in the first comment, the 10 states want to start enhanced cooperation by simply building on whatever already has been developed, including both draft regulations under Article 118 TFEU.

    In view of the above, if enhanced cooperation is applied to EU patents, these patents will apply throughout the truncated Union that is formed by the states participating in enhanced cooperation.

    The idea behind the general approach of December 2009 was that in December 2009 the Council could not yet adopt a formal decision adopting an "opinion" that could be sent to the European Parliament for 2nd reading, as by then it was unknown whether the European Parliament would accept to deal with the EU patent in 2nd reading as the legal basis was changed from Article 308 EC Treaty to Article 118 TFEU. The idea was that once the position of the European Parliament was known, the Council would formally adopt its "position" in 1st reading without further discussion, thereby sending the draft regulation to the European Parliament for 2nd reading.
    This means that the reference by the 10 states now asking for enhanced cooperation to this "general approach" should be understood as that they want to use the draft EU patent regulation in the version of December 2009 as basis for their EU patent system.

    I fully agree that Part IX EPC can be used for an EU patent system. In that case neither an EPC amendment nor a PCT amendment is needed, which would greatly simplify things.
    However, using Part IX EPC would not result in an EU patent for the EU as such (to be regulated in a regulation based on Article 118 TFEU), but in a jointly administered patent for the EU states, and a regulation governing a patent for EU states must be adopted under Article 114 TFEU.
    Only when it appears that such an Article 114 TFEU based regulation cannot be adopted because a qualified majority cannot be obtained in the Council, it is possible to consider enhanced cooperation again, in which case the measure would be adopted under Article 114 TFEU in combination with Article 20 TEU and Articles 326-334 TFEU.

    Industry cannot accept the Community trademark litigation system for patents, because industry does not want a national court in a country in which patents are hardly ever litigated (this covers most EU states!) to be able to pronounce EU-wide applicable decisions on infringement and validity. If a court is insufficiently familiar with patents, the risk is simply too large that an EU-wide injunction is wrongly granted or refused, or a patent is wrongly maintained or revoked. Industry needs an experienced specialized patent court to issue EU-wide applicable decisions.

  8. The previous commentators are in a way *both* right - the enhanced cooperation provisions would apply as regards the authorisation of enhanced cooperation (a qualified majority in Council and EP consent needed to authorise enhanced cooperation), but then art 118 would apply as regards the voting rules for the legislation on the patent - although only the participating states would be voting. So you would need a qualified majority of the participating states to adopt the main patent legislation (plus agreement with the EP), and unanimity of the participating states (plus EP consultation) to adopt the patent translation legislation.

    What I wonder though is whether this scheme is viable without the draft patent litigation treaty - and whether it can be redrafted in such a way that only the participating EU Member States and presumably any willing third states would be necessary for its ratification. Otherwise Spain and Italy could just block it, and therefore the whole scheme - as indeed the letter of Berlusconi and Zapatero implicitly threatens to do. Does anyone have any views on this?

    There could of course be litigation both as regards the decision to authorise enhanced cooperation (ie an annulment action by Spain and Italy) and as regards any attempt by Spain and Italy to block the patent litigation treaty - since the enhanced cooperation rules specify that the non-participants cannot get in the way of the participants. Either way there is a possible legal argument to be made.

    Could someone explain the competence argumnts as regards the patent litigation treaty - it is drafted as a 'mixed agreement' involving both the EU and its Member States, and as far as I understand it this issue has not been sent to the Court of Justice. So any insufficiency in the EU's powers to participate in the treaty are made up by the Member States' participation. In that case, why would there be a need for a UK referendum to approve it? And why a Danish or Irish referendum - unless those states have constitutional issues regarding such a draft treaty that have nothing to do with EU treaty amendments?

  9. Made the FT on Thursday...

  10. A reply to 'anonymous' - 3.46 pm on Thursday - a) the idea of using Part IX EPC does not seem to be on the agenda, if I understand correctly, unless the plans change drastically from the Dec. 2009 conclusions which call for the EU to join the EPC etc;
    b) I think the Council stuck with a 'general approach' in Dec. 2009 rather than adopt a formal first-reading opinion also because it was waiting to do a deal on the other parts of the package at the same time - ie the patent litigation treaty, then (and still) awaiting clarification from the ECJ, and the patent translation proposal, not then on the table;
    c) technically, enhanced cooperation is authorised in the first place by a measure based on the enhanced cooperation provisions of the Treaties, and then implemented by the specific provisions of the Treaties which are the legal base for the main measure (ie Art 118 TFEU in this case), with only the participating MS voting. The two sets of rules are *not* used together for the same measure, but in parallel for separate but intrinsically related measures. Have a look at the Rome III measures if you don't believe me.

    Still wondering if anyone can clarify whether the EU patent (in the version as agreed Dec. 2009) could go ahead despite the opposition of Spain and Italy - as regards the question of the EU joining the EPC, and as regards ratification of the patent litigation treaty, which were both key parts of the package according to the Council conclusions. If anyone else has the patience to listen to the recorded Council debate from Friday you will see that both the Czechs and the Slovaks had concerns about this issue.

  11. As to anonymous's comment on my comment concerning the PCT; there is still no need for the PCT to be amended.
    All member states of the EU are members of the PCT.
    The PCT does not restrict member states in having a unitary patent covering them [e.g. Switzerland/Liechtenstein].
    The EU [and indeed the truncated group] would be a group acting in lieu of member states.

    There is therefore no problem with the PCT.


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