December 2011
We saw significant progress this year, when the European Union (EU) Competitiveness Council approved new draft regulations for a single EU patent. Under these proposals, EU patent applications will be examined and granted in English, French or German. The granted patent will automatically cover, and be enforceable in, all countries of the EU.
Italy and Spain, who are not pleased that their languages have been ignored, have each launched legal challenges, at the Court of Justice of the European Union (CJEU), against these proposals.
These legal challenges will slow progress, but the reality of a single EU patent is looking more likely in the near future.
One remaining major difficulty is how the granted single patent should be litigated.
Currently, European patents granted by the European Patent Office (EPO) are a bundle of national patents, enforced nationally. This system is cumbersome, expensive, and leads to practice inconsistency between European states. For some time the goal of the EU has been central enforcement of European patent rights. The prospect of a single EU patent increases the need for such central enforcement. Unfortunately, creating the structure to do so has always been controversial.
The European Commission has proposed a court, which would have exclusive jurisdiction over enforcement of both the proposed EU patents and patents granted by the EPO. The proposed court would be set up by agreement between EPO member states, and would not be in the jurisdiction of the CJEU.
This plan was halted when the CJEU ruled that EU Law did not allow the proposed court, because it transfers powers from EU institutions to a court which is not part of the EU structure.
The EU President has responded with a revised proposal. This addresses a number of the issues raised by the CJEU, but a number of concerns remain. These include funding for the court (it is unlikely that funding would come from the EU); whether infringement and validity should be addressed separately; whether the court should have exclusive jurisdiction over EU patents and patents granted by the EPO; and the administrative structure of the courts.
We are waiting for the CJEU’s opinion on these proposals. Whatever it decides, there is clearly some way to go before we can rely on a pan-European litigation system.