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Unitary patent protection framework moves closer following EU Ministers' backing and CJEU adviser opinion

Plans to enable inventors to obtain patent protection across the bulk of the EU moved closer to being approved on Monday after EU Ministers gave their backing to a proposed new framework.11 Dec 2012

The Competitiveness Council "endorsed" plans that would give inventors the ability to obtain unitary patent protection in 25 of the 27 EU member states through a single patent application process.

The Council said that the European Parliament is expected to "validate the institutional agreement" in a vote on the new framework today. The Council of Ministers would then formally adopt the plans before the end of the month, it said, with the prospect of the first unitary patent being granted in spring 2014.

"With the unitary patent, only one application will be necessary to protect a patent in all EU countries, in contrast to the current situation where it has to be validated and accepted in each EU country in which the applicant would like to gain protection," the Competitiveness Council said in a statement. "This way, the process of validation will be faster because translations will no longer be required, and the patent will be validated in the language in which it was granted (only French, English or German)."

"These changes represent a great advantage to patent owners because it would significantly reduce the costs of broad patent coverage in European Patent Organisation member states," it added.

Various plans to establish a cheaper and more efficient way for inventors to gain patent protection across Europe have been debated for more than 30 years.

However, in recent months the 25 EU countries have moved closer to establishing a new framework around how that system would operate.

The 25 countries have been working under an enhanced co-operation mechanism in order to develop the plans. The Lisbon Treaty permits a faction of 9 or more EU countries to use the EU's processes and structures to make agreements that bind only those countries.

Spain and Italy have objected to the other member states' use of the enhanced co-operation mechanism and have asked the Court of Justice of the European Union (CJEU) to prevent the 25 nations pressing ahead with the plans as currently drafted.

One of the objections that Spain and Italy have raised relates to the proposal that unitary patent applications and approvals be made available in at least one of English, French and German. The two countries said that the proposed language regime would "give rise to discrimination between undertakings" because "commercial trade in innovative products will be favoured for undertakings which work in German, English or French, while the trade of undertakings which do not use those languages will be limited".

However, a legal advisor to the CJEU today said that the Court should reject Spain and Italy's objections, paving the way for the proposed unitary patent plans currently on the table to be finalised.

In his opinion 

Advocate General Bot said that the language regime complaints were "inadmissible" and further rejected claims that the use of the enhanced cooperation mechanism to form a unitary patent framework would harm competition. The opinion is not binding on the CJEU, which will rule on the matter next year.

"The Court must ascertain whether the establishment of enhanced cooperation in the area of the creation of the unitary patent is manifestly inappropriate because that cooperation would undermine the internal market and also economic, social and territorial cohesion, would constitute a barrier to and discrimination in trade between Member States and would distort competition," Advocate General Bot said. "To my mind there is no evidence that it would do so: indeed, it would do precisely the opposite."

The patent reforms proposed are made up of three elements. There are separate legislative proposals relating to the terms of unitary patent protection and the language regime and there are also plans to form a new court system to provide oversight of the regime.

Under the court system plans new central, regional and local divisional unitary patent courts would be established with varying responsibilities for ruling on patent validity and patent infringement issues. 

There had been a dispute over which location the new central divisional court should be based, but a compromise was reached in the summer. The functions of the central divisional court are to be split, with disputes over unitary patents related to chemistry, including in pharmaceutical products, overseen in London. A seat in Munich would deal with "mechanical engineering" issues and all other central divisional unitary patent court disputes would be dealt with in Paris.

The European Parliament is due to vote on the proposals later today, but Nokia, BAE Systems and Ericsson have all written to MEPs to raise their concerns with the plans that are currently drafted.

In a joint letter (1-page / 279KB PDF) Nokia and BAE Systems said that the current plans, if introduced, would fail to produce a better system than the existing regime.

"The proposed Regulation now before the European Parliament is seriously flawed," Nokia and BAE Systems said. "We are concerned that, if passed, it will harm innovation, competition and enterprise in Europe for years and decades to come. It will put Europe at a serious disadvantage compared with other nations and trading blocs, both established and developing, around the world. In short it creates a non-level playing field for European companies doing business in Europe."

The companies said that the plans would create "greater legal uncertainty and more opportunity for forum shopping" and would facilitate the abuse of rights by patent holders.

"Examples of such abusive behaviour include enforcement by patent holders of invalid or weak patents, using threats of pan-European injunctions to extract money from legitimate European businesses that make and sell products in Europe," the two companies said. "This would be to the detriment of European-based business both large and small."

In a separate letter (2-page / 330KB PDF) Ericsson raised the same concerns and added that it believed the proposed new court system would be "too costly and slow" to use.

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