Spain launches legal challenge to unitary European patent proposals

The European Commission has defended the plans, claiming they are not unfair to countries that do not join up.

Plans to streamline cross-border patent protection processes were proposed by 12 EU countries last year, were backed by the European Commission in April and have been supported in all by 25 of the EU's 27 member states.

Under the new plans a European patent holder will make only one application to the European Patent Office for patent protection across the 25 EU countries that have signed up to the scheme, with successful patents being published in English, French or German. The countries hope it will make it easier and cheaper for inventors to safeguard against infringement.

The two countries that have not signed up the plan are Spain and Italy. Though reports have emerged that Italy has also objected to the plans, an ECJ spokesman told OUT-LAW.COM that it has only received an objection from Spain.

Implementation of the plans would not lead to discrimination of businesses in Italy and Spain, Internal Market Commissioner Michel Barnier has said, according to reports.

"I am confident that the enhanced co-operation procedure presented by the Commission is not discriminatory," Barnier said according to a Office for Harmonisation in the Internal Market (OHIM) report. "We are assured that Italian and Spanish business will suffer no discrimination."

The OHIM website and EurActiv news service have reported that Italy, too, has lodged a complaint about the plans, which were made possible by an 'enhanced cooperation' mechanism introduced by the Lisbon Treaty. This allows groups of nine or more EU countries to use EU structures to make agreements that will bind only those countries which opt in to them.

Italy said that a patent agreement between the other EU countries was an attempt to create a "clique of power" and contravened "the equal right to dignity and the respect for the languages and culture of each member states", according to the EurActiv report.

"Enhanced cooperation was never intended to be used as a divisive instrument, effectively stretched in order to nullify the norms of the European Treaties which call for humanity, but as methods for groups of states to develop means of integration in which other states are not interested," the Italian Ministry of Foreign Affairs said, according to a report on the Eur Activ news website.

"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," the Ministry said, according to the report.

Spain said future European patents cannot be based on linguistic discrimination, according to the Eur Activ report.

"We cannot understand why Spanish and other languages cannot have the same status of French, English and German," Spain's EU affairs minister Diego Lopez Garrido said, according to the report.

"[The Spanish government] insists that the reinforced cooperation mechanism was used to impose a solution which excludes Spain with a mechanism which, paradoxically, was thought up to facilitate the integration of the Member States,” Lopez Garrido said, according to the report.

“Spanish is a great European language and Spanish companies, Spanish innovators and patentors cannot be discriminated against for reasons of language," Lopez Garrido said, according to the report.

The European Commission has been trying to establish a unitary patent protection system for many years without success.

At the moment obtaining Europe-wide patent protection is only possible by validating a patent registered with the European Patent Office (EPO) in each individual country. To be valid in a country a patent must be translated into its language. The Commission has sought a cheaper system because of what it has said is the prohibitive cost of that process.

In December, 12 member states got together to push for new unifying patent protection regulations. Since December a further 13 countries have backed the proposals.

The countries were forced to revise their plans in March after the European Court of Justice said that the creation of a pan-European Patent Court to rule on disputes would contravene EU laws.

The Court would exist outside of the judicial structures already in place and so would leave citizens potentially without recourse to action though existing EU courts, the ECJ said at the time.

The Council of Ministers, along with the European Parliament, is currently reviewing the enhanced cooperation agreement plans of the 25 EU countries. It recently published draft amendments to the plans that include proposals to establish a dispute system that works within the existing EU judicial structures.

Competition ministers will discuss Italy and Spain's legal challenge at a meeting at the end of this month, according to reports.

Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.