Patent still pending

A single European patent is closer to becoming a reality than ever, but it is still not ready

Herman Van Rompuy, the president of the European Council, and several leaders of European Union member states at their summit on 29 June hailed a breakthrough in the 30-year-long battle for a unitary European patent.

For an initiative that has taken so long to become a reality, it might have been expected that the path towards completion after this breakthrough would be anything but smooth, and so it has proved. The decision at the summit to delete three articles from the original compromise text agreed by member states and the European Parliament in December has fallen foul of MEPs. The legal wrangling looks likely to delay the matter for several months.

While the unitary patent has not quite gone back to the drawing board, the MEPs’ opposition – just when a deal was thought to have been in sight – is a major setback that calls into question the European Commission’s ambition for the first unitary patents to be granted in 2014.

Over the past three decades, many have argued that a unitary European patent should be a cornerstone of the EU’s single market. The existing fragmented, inefficient European patent system has been blamed for the sluggishness with which European companies have transformed scientific know-how into sellable products, with the knock-on effect this has had on the economy at large.

At present, a company wishing to protect its innovation throughout the EU has to secure a patent in each of the 27 member states of the EU; a costly and time-consuming task compared with the ease of filing a single patent application in the United States.

Since the 1970s, member states have been wrestling with the issue. But the problem of the patent’s language regime proved a constant stumbling block until the process of enhanced co-operation allowed 25 member states to push ahead despite opposition from Italy and Spain. Even after member states and the Parliament agreed on a text, a deal was held up for months because of one issue – the location of the central division of the future European patent court, with Paris, London and Munich all vying for the right to play host.

At June’s European Council, a compromise was reached: the decision was made to set up the court’s central division in Paris, with smaller specialised offices in the two other cities. The office of the court’s president would also be based in Paris.

However, in order to reach that compromise – in effect, for the UK to approve France’s bid – something had to give. Member states agreed to weaken significantly the role of the European Court of Justice (ECJ), boosting the authority of the new patent court. The decision deletes articles 6-8 of the original text of the regulation agreed between member states and the Parliament in December. Article 6 defines a direct infringement of a unitary patent, article 7 an indirect one, and article 8 the limits on rights conferred by such a patent.

David Cameron, the British prime minister, wanted the articles deleted because that way the ECJ will not have ultimate jurisdiction over the patent court. Cameron doubts the ECJ’s competency on patent issues. He said that the new draft ensured that the patent would not be “snarled up in the processes” of the ECJ.

But this has not gone down well with MEPs, whose consent is required. On 3 July, at the Parliament’s plenary session in Strasbourg, they decided to postpone a vote on the patent, claiming that the compromise strayed too far from their original agreement.

Klaus-Heiner Lehne, a German centre-right MEP who chairs the Parliament’s legal affairs committee, which leads on the issue, said that the Council’s text would “emasculate” the proposal. Bernhard Rapkay, a German centre-left MEP, who has led the Parliament’s work on the subject, said that he believed the latest draft “infringes EU law”. The committee has asked the legal services team of the Parliament and Commission to investigate the legality of the plan.

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The conclusions of the EU institutions’ legal teams will form the next step on the unitary patent’s long, meandering journey. Despite the breakthrough, there is some way to go.