EU patent fight goes to court

4th of July 2011

Italy and Spain have lodged a complaint with the European Court of Justice against attempts by other member states to introduce an EU patent without them.

The EU patent scheme is backed by 25 member states but viewed as discriminatory by Rome and Madrid. In a statement the Italian Foreign Ministry said it had lodged the complaint with the court to defend the values of the union against abuse.

The statement said the use of enhanced co-operation procedure was "never intended to be stretched to nullify the original aims of the European treaties".

It added: "The use of enhanced co-operation within the patent sector is contrary to the spirit of the single market, because it tends to create division and distortion within the market, and will thus prejudice Italian businesses."

Supporters of a single EU patent say it is time for the Union to replace the current system, which forces firms to patent their designs in every one of the bloc's 27 member states and in 23 official languages, at huge expense.

Ministers are set to discuss the issue at a special meeting late in June. Internal market commissioner Michel Barnier said: "I am confident the enhanced co-operation procedure presented by the Commission is not discriminatory. We are assured that Italian and Spanish business will suffer no discrimination."

Patent titles are currently granted by the European Patent Office (EPO), which was set up in 1977 and now covers 38 countries, including all EU member states. But the so-called 'European patent' offered by the EPO is in reality a bundle of national patents, with each country having its own set of different rules.

Common system

In February the European Parliament gave its approval for member states to make use of the enhanced cooperation procedure for setting up a common patent system. The agreement among 25 member states concerns the creation of the European patent – which in legal jargon is known as a 'unitary patent title' – as well as the use of English, French and German as the three main working languages.

However another potentially more difficult issue is not covered by the ministers' agreement. This concerns the idea of setting up a common jurisdiction system, including a tribunal to resolve legal disputes, for example concerning the scope of individual patents.

Before the agreement on enhanced co-operation had even been reached, the European Court of Justice ruled the creation of a Community Patent Court would not be compatible with the provisions of EU law, casting doubt over plans to establish a Europe-wide system.


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