Progress towards a European Union Patent

The European Union Patent (which should not be confused with the existing European Patent system under the European Patent Convention) has been more than 30 years in the making, but has never been launched owning to lack of unanimity between the EU member states, now 27 in number, principally over the language regime and translation requirements. However, within the past 12 months, real progress has been made towards agreement on the EU Patent by 25 member states using what is called “enhanced cooperation”. The EU Competitiveness Council now expects an agreement on the EU Patent within days, clearing the way for an agreement to be signed by 25 EU member states on 22 December 2011 in Warsaw.

“Enhanced cooperation” is a procedure where nine or more EU member states are permitted to agree amongst themselves advanced integration or cooperation within EU competencies. The proposed EU Patent would be administered by the European Patent Office, and as with the European Patent the proposed language regime would be based on English, French and German. In this case, the states not participating in the enhanced cooperation are Spain and Italy, but these states may yet join the proposed EU Patent.

The main obstacle to an agreement is the location of the Court to deal with litigation stemming from the EU Patent. The negotiations have been progressing under the current Polish presidency of the EU Council favours Paris, but the German and United Kingdom governments continued to press respectively for Munich and London during lengthy talks in Brussels on 5 December 2011.

However, the Competitiveness Council did agree on the location for the Court of Appeal, which will be in Luxembourg, as well as the locations for the patent mediation and arbitration centre, which will be in Lisbon and Ljubljana.

Robert McLean

08 December 2011