Long-Awaited EU Unitary Patent Possible As Prospects Brighten

Author:Mr Rouget Henschel and Isabel Alves
Profession:Foley & Lardner

Previous Attempts to Create a Unitary Patent Protection

The proposal was reformulated in 2009, after the entry into force of the Lisbon Treaty, which introduced a new legal basis for the creation of EU IP rights. According to article 118 of the TFEU1, the creation of European IP rights follows the co-decision procedure, where the European Parliament must vote on the Commission's proposal, and the Council votes by qualified majority. However, any language arrangements for the European IP rights require unanimity in the Council and only the consultation of the European Parliament.

Even though a general approach was agreed on in late 2009, between the EU ministers, regarding the creation of the EU patent, the translation arrangements remained out of the scope of the agreement. Discussion on the translation arrangements continued throughout 2010. However, it soon became clear that the required unanimity would not be reached. In light of this, several member states showed interest in establishing an enhanced cooperation between themselves.

Enhanced Cooperation

The instrument of enhanced cooperation allows those EU countries that wish to continue to work together more closely to do so, while respecting the single institutional framework of the Union. Enhanced cooperation is regulated by article 20 of the TEU2 and articles 326 to 334 of the TFEU. It can be used only as a last resort and at least nine member states must participate.

In order to establish enhanced cooperation in the field of patents, 12 member states addressed a request to the Commission, which presented a proposal for an authorization decision to the Council on December 14, 2010. This proposal already contained the main elements on which the cooperation would be based. Soon after, all the remaining member states, with the exception of Spain and Italy, requested to join the enhanced cooperation. After obtaining the consent of the European Parliament, and despite continued opposition by Spain and Italy, the Council decided, on March 10, 2011, to authorize the member states to pursue the enhanced cooperation.

Following this decision, the Commission presented to the Council, in April 2011, detailed proposals for implementing measures: one on the substantive provisions applicable to the unitary patent, that will be voted by qualified majority and another on the translation arrangements, that will require unanimity (now only from the member states participating in the enhanced...

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