Owing to the lack of unanimous support, last December 12 Member States decided to tackle the political standstill by suggesting the implementation of the enhanced cooperation procedure for the purposes of voting on the introduction of a single European patent. Despite the initial set-back, on the 15th February, 471 votes were lodged in favour of the European patent, only 160 were lodged against and 42 abstained. It therefore appears that the introduction of the European patent is being backed up with substantial strength.
The enhanced cooperation procedure established under the Lisbon Treaty can be used to enable a selection of the Member States in favour of a particular project to go ahead and adopt common rules in respect of such project; whilst permitting those against it to opt out but nonetheless retain the option to opt in at a later stage. This procedure may only be implemented upon attainment of authorization by the Council on the basis of a Commission proposal following European Parliament consent. It is rarely used – in fact the European patent issue posed as the second opportunity for this procedure to come to life, following the first time use in the matter related to divorce law in 2010.
The introduction of a European patent would result in the creation of a single intellectual property right recognizable in all the Member States supporting it; hence eradicating the need to validate and enforce a patent in each Member State individually. This system will do away with the divergences in place among Member States over patent rights and will make it considerably cheaper for investors to protect their intellectual property rights throughout the EU and to help tackle infringements. Naturally, this would benefit those wishing to have a patent recognized and enforceable in a number of Member States; as it will eliminate the complex and expensive nature of the current system.
Moreover, it will encourage patent holders to increase their protection with more ease and to become more competitive when compared to their American and Japanese rivals who have been benefitting from significantly cheaper rates for patent protection for years. This will be particularly advantageous for European SMEs.
Albeit the significant support that the European patent has been given, it has had to overcome a number of stumbling blocks over the years; the main hurdle being the suitable language regime. As things currently stand, a patent holder wishing to enforce the patent in more than one Member State must translate the patent into the official language of each Member State in which protection is being sought. The single European patent system proposes that a patent which is translated into English, French or German shall be effective in any of the Member States supporting the European patent.
Italy and Spain have refused to opt in, arguing that the Italian and Spanish languages have been discriminated against in not being given the same treatment as the German, French and English ones. The opting out of Italy and Spain will result in Italian and Spanish companies having to apply for a European patent in each language in several countries; and foreign competitors having to translate their patents into Italian and Spanish to be able to have protection in the latter markets.
On the other hand, English, French and German companies will have an advantage over their competitors from other Member States as they need not translate their patents and may retain their original language without compromising on their effectiveness. Italy and Spain may potentially contest the decision to authorize the use of the enhanced cooperation procedure before the European courts. However it has not yet been established on what grounds they may attack this decision.
The next step is now for the Council of Competitiveness Ministers to issue a formal decision regarding the adoption or otherwise of the decision authorizing the enhanced cooperation procedure on the 9th and 10th March. Following approval, the Commission is expected to submit legislative proposals regarding the single patent and the language regime separately. The MEPs have requested the Council to use the co-decision procedure in arriving at both proposals.
Owing to the lack of unanimous support, last December 12 Member States decided to tackle the political standstill by suggesting the implementation of the enhanced cooperation procedure for the purposes of voting on the introduction of a single European patent. Despite the initial set-back, on the 15th February, 471 votes were lodged in favour of the European patent, only 160 were lodged against and 42 abstained. It therefore appears that the introduction of the European patent is being backed up with substantial strength.
The enhanced cooperation procedure established under the Lisbon Treaty can be used to enable a selection of the Member States in favour of a particular project to go ahead and adopt common rules in respect of such project; whilst permitting those against it to opt out but nonetheless retain the option to opt in at a later stage. This procedure may only be implemented upon attainment of authorization by the Council on the basis of a Commission proposal following European Parliament consent. It is rarely used – in fact the European patent issue posed as the second opportunity for this procedure to come to life, following the first time use in the matter related to divorce law in 2010.
The introduction of a European patent would result in the creation of a single intellectual property right recognizable in all the Member States supporting it; hence eradicating the need to validate and enforce a patent in each Member State individually. This system will do away with the divergences in place among Member States over patent rights and will make it considerably cheaper for investors to protect their intellectual property rights throughout the EU and to help tackle infringements. Naturally, this would benefit those wishing to have a patent recognized and enforceable in a number of Member States; as it will eliminate the complex and expensive nature of the current system.
Moreover, it will encourage patent holders to increase their protection with more ease and to become more competitive when compared to their American and Japanese rivals who have been benefitting from significantly cheaper rates for patent protection for years. This will be particularly advantageous for European SMEs.
Albeit the significant support that the European patent has been given, it has had to overcome a number of stumbling blocks over the years; the main hurdle being the suitable language regime. As things currently stand, a patent holder wishing to enforce the patent in more than one Member State must translate the patent into the official language of each Member State in which protection is being sought. The single European patent system proposes that a patent which is translated into English, French or German shall be effective in any of the Member States supporting the European patent.
Italy and Spain have refused to opt in, arguing that the Italian and Spanish languages have been discriminated against in not being given the same treatment as the German, French and English ones. The opting out of Italy and Spain will result in Italian and Spanish companies having to apply for a European patent in each language in several countries; and foreign competitors having to translate their patents into Italian and Spanish to be able to have protection in the latter markets.
On the other hand, English, French and German companies will have an advantage over their competitors from other Member States as they need not translate their patents and may retain their original language without compromising on their effectiveness. Italy and Spain may potentially contest the decision to authorize the use of the enhanced cooperation procedure before the European courts. However it has not yet been established on what grounds they may attack this decision.
The next step is now for the Council of Competitiveness Ministers to issue a formal decision regarding the adoption or otherwise of the decision authorizing the enhanced cooperation procedure on the 9th and 10th March. Following approval, the Commission is expected to submit legislative proposals regarding the single patent and the language regime separately. The MEPs have requested the Council to use the co-decision procedure in arriving at both proposals.