‘At today’s Competitiveness Council, 11 Member States stated their agreement to work to implement the European patent via the procedure of enhanced cooperation,’ announced Belgian Minister for Enterprise and Simplification Vincent Van Quickenborne on 10 December. His words mark the beginning of the end of a decades-long impasse on the difficult issue of a single European patent.
Mr Van Quickenborne continued: ‘The agreement of today means that in the future the cost of a European patent will be reduced by a factor of 10, and the result will be that the cost of a patent in Europe will be competitive and comparable to that of the cost in the United States and in Japan, and this will of course greatly benefit competitiveness in our industry.’
As the minister pointed out, the idea of creating a single European patent was first mooted back in 1949. However, getting Member States’ agreement on this thorny subject has, until now, proven impossible. Like many Member States before them, the Belgians made the EU patent one of their priorities when they took over the Presidency of the EU Council back in June. Initially, they strove to get all 27 Member States on board.
‘We tried hard to reach unanimity,’ reported Mr Van Quickenborne. ‘I can say that we left no stone unturned.’ By November’s Competitiveness Council meeting, it was clear that it would be impossible to arrive at a compromise satisfactory to all EU countries.
Instead, in what Mr Van Quickenborne described as a ‘brave decision’, a number of Member States opted to use the ‘enhanced cooperation’ procedure, which allows nine or more countries to move forward on an issue which is being blocked by a small number of Member States.
According to the Lisbon Treaty, enhanced cooperation can only be used ‘as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it’.
The 11 countries interested in using enhanced participation for the patent issue are: Denmark, Germany, Estonia, France, Lithuania, Luxembourg, the Netherlands, Slovenia, Finland, Sweden and the UK. Other countries may join the system later if they wish.
The European Commission must now assess whether the request for enhanced cooperation is valid; on Tuesday 14 December, the European Commission is expected to discuss putting forward a formal proposal for a Council decision authorising the application of the enhanced cooperation procedure to the creation of an EU patent.
Speaking after the Competitiveness Council meeting, European Internal Market and Services Commissioner Michel Barnier set out the next steps: ‘This is an institutional decision of principle which will open the way for enhanced cooperation.’
He went on to say: ‘The decision on Tuesday will not deal with the substance. It is a proposal for the Council to take a decision. The European Parliament will also be asked to give its opinion and agreement to this proposal. Then at its next meeting the Competitiveness Council will take the formal decision under the Hungarian Presidency. In all likelihood this will be in March.
‘As soon as the formal decision is taken by the Competitiveness Council, the Commission will make legislative proposals with a view to the de facto implementation of this cooperation by virtue of two regulations, firstly on the creation of single protection and then we will also have a second regulation on translation arrangements.’
Once these legislative proposals are on the table, normal EU legislative procedures will be followed. Mr Barnier commented that he hoped these deliberations would be ‘wrapped up by the end of 2011’.
However, the move for enhanced cooperation is not without its detractors. Spain and Italy sent a letter to the Council and Commission claiming that the patent issue does not meet the requirements of the enhanced cooperation procedure.
‘Enhanced cooperation should only be applied as a last resort mechanism, a requirement that is not met in the negotiations concerning the Patent’s language regime,’ they write. In their opinion, the importance of the issue to European competitiveness is ‘well worth the additional effort needed to reach the unanimity desired’.
They call on the European Council to ‘consider the need to continue negotiations in order to find an agreement between all the Member States on the language regime of the Patent of the European Union.’
Meanwhile the Belgians are proud of their efforts regarding the patent, calling the result of the latest Competitiveness Council the ‘cherry on the cake’ of their EU Council Presidency. ‘The EU patent was one of the priorities of our presidency. I’m pleased to say that we’ve managed to conclude it with this important result,’ commented Mr Van Quickenborne.
Source: Community R&D Information Service (CORDIS)
