First divorce, now separation: European Parliament votes for enhanced cooperation

The European Parliament's new building is designed
to reflect that body's flexibility in dealing with patent law
A press release from the European Parliament today ("EU patent: Parliament gives go-ahead for enhanced cooperation", here) carries some much-anticipated news: the European Union is to get its own not-quite-Community patent.  According to the press release,
"The European Parliament gave its consent ... for a common EU patent system to be created using the enhanced cooperation procedure. In December 2010, twelve Member States made a request to launch such a procedure, after it was concluded that not all the Member States could agree on an EU-wide patent system.

All the other Member States except Italy and Spain have since indicated they will sign up to the procedure. These two countries can still join in at any time if they wish.

Parliament gave its backing today for the procedure to go ahead by 471 votes to 160, with 42 abstentions.

Next steps

The Council of Competitiveness Ministers is expected to formally adopt the decision authorising enhanced cooperation on 9-10 March. The Commission will then submit two legislative proposals: one establishing the single patent (under the co-decision procedure) and the other on the language regime (consultation procedure). In today's resolution, drafted by Klaus-Heiner Lehne (EPP-ED, DE), MEPs call on the Council to use the co-decision procedure for both proposals.

[Usual paragraph about how long everyone's tried to get consensus and about how much more it costs to get a patent in Europe than in the US omitted]

A unitary patent system, abolishing differences between Member States over patent rights, would make it easier and cheaper for inventors to protect their patents throughout the EU, help tackle infringements and create a level playing field for Europe's innovative businesses [unless, of course, it doesn't. This at least can be quantified].

What is enhanced co-operation?

Under the Lisbon Treaty, "enhanced co-operation" can be used to enable a group of Member States to adopt new common rules when a unanimous EU-wide agreement cannot be reached.

Such a procedure may go ahead only after the Council authorises it, on the basis of a Commission proposal, and after the European Parliament has given its consent.

This is the second case of enhanced cooperation, the first being the divorce law approved in 2010".
Early comments are generally supportive, if the early press releases thudding into the IPKat's emaiil in-tray reflect the consensus. Keith Hodkinson (Marks & Clerk chairman) has described the current system as being patchy, adding: "This hasn’t helped anyone, least of all the SMEs we are trying to help innovate. No one EU country is being excluded by the scheme – all can join or not as they choose" He adds, “We must not let language issues be used to obstruct a desirable reform.”  Ilya Kazi (partner, Mathys & Squire LLP) agrees: "Until now an innovator who has successfully navigated the search and examination process and been granted a patent in Europe has immediately faced a bill for filing translations (that may well never even be read) often amounting to more than the entire cost of the battle of getting to grant.  ... A more pragmatic, complete solution that makes the formal part of the process cheaper and more straightforward is long overdue".

Says the IPKat, the adoption of an enhanced cooperation programme will only bring benefits if (i) it is formulated in a manner which will allow it to so and (ii) the various professions nationally and across the EU who service the innovative industries are able to adapt to it and make it work.  The pan-European Community trade mark -- an excellent idea and now working fairly well -- has taken 15 years to get into proper working order, since the new system took some time to learn and, more tellingly, the old system took a very long time to forget.  Germans, Dutch, British and others imported their old habits and their old conceptual assumptions into the running of the new system, resulting in a large degree of uncertainty and a huge quantity of requests to the European Court of Justice to explain how the system works.  An EU patent must work more quickly: 15 years is substantially longer than the lifetime of the average granted patent.
First divorce, now separation: European Parliament votes for enhanced cooperation First divorce, now separation: European Parliament votes for enhanced cooperation Reviewed by Jeremy on Tuesday, February 15, 2011 Rating: 5


  1. I just wrote about this yesterday and NOW the Parliament votes on it! Perfect timing!

  2. "An EU patent must work more quickly: 15 years is substantially longer than the lifetime of the average granted patent."

    Well, since the enhanced cooperation patent doesn't change anything whatsoever in pre-grant proceedings, I'm not greatly worried about that.

    Litigation will of course be a trickier matter, but then we'll have to see what comes out of the CJEU next month...

  3. I do not entirely agree with your commentary on the European Parliament vote.

    Even if you were right, at least we would get to the same unsatisfactory position you fear more cheaply than we do now.

    However, I am much more optimistic.

    Unlike the CTM, the CPC and its compromise deal will implement a system which has been running for thirty years, used by the member states whose national laws have been substantially harmonised for many years. Only the tedious final administrative procedures will change. Everything else pre grant remains as it is. Relatively few patents are litigated. So pre-grant costs are the dominant issue here for the user.

    You are quite right that Germans, Dutch, British and others did import their old habits and their old conceptual assumptions into the running of the system thirty years ago, resulting in a large degree of uncertainty and requests to the (Enlarged) Board of Appeal to explain how the system works.

    However, very few referrals now arise from such conceptual differences - as opposed to political or ethical issues which do not arise from nationally based preconceptions; or ingenious arguments seeking to avoid unpleasant consequences for an individual applicant, often represented by an advocate from an entirely different country.

    So the CPC gets off to a belated flying start in that regard.

    Enforcement of the unitary patent will no doubt still depend to a large degree on the jurisdiction of the individual tribunal as it does now, on procedural and cost issues, which still vary widely, and there will still be some limited forum shopping; but who could not say that of decisions within their own national system - have you ever wondered which judge you will get?

    At least the limited number of Community Patent Courts will start from a much more coherent body of case law on the meaning of the EPC/CPC than was the case with the CTM and without the unmanageable number of disparate reported decisions which the OHIM, Boards of Appeal, national offices and courts generate.

    The enforcement jurisdiction rules will limit forum shopping.

    Judicial workshops and symposia of the type we have seen promoted by the likes of Robin Jacob will be critical and I hope that funds will be made available to encourage them. Indeed my main fear would be that of an enthusiastic but inexperienced General Court being given a role leading it to tread in specialist areas where even angels fear to tread.

    So, be optimistic, not fearful, and pray that our Italian and Spanish colleagues join us in this endeavour more quickly than was the case with our French colleagues and the London Agreement!

  4. Forgive the question if this has already been answered, but how is it planned to provide for litigation - nullity and infringement - in respect of the states taking part in the enhanced co-operation?

    Is it currently planned to create an analogous body to the above mentioned Community Patent Courts, which would then be charged with hearing litigation in respect of the >= 12 EU states taking part in the enhanced co-operation or is some form of mutual recognition of court decisions issued in these states being planned? I could not find any mention of such a court in the proposal for enhanced co-operation.

    I know that Germany and the UK have different views on whether nullity and infringement should be tried together - has this been resolved?

    Thanks in advance.


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