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Progress of the Proposed EU Patent System

DATE: 21.06.2011


The long debated single EU patent system moved a step closer to reality this month. In November the Belgian EU Presidency concluded that it would not be possible to reach unanimity on a language regime for a unified EU patent system. A large majority of delegations at the Competitiveness Council meeting in December considered that the only way of making progress would be to initiate an “enhanced co-operation” procedure under the EU Treaty and asked the European Commission to present a formal proposal in this regard. The Commission submitted its proposal on 14 December, 2010 which was strongly opposed by the Italian and Spanish delegations.

If finally approved by the Council and the European Parliament, then based on present support the new system would operate between Denmark, Germany, Estonia, France, Lithuania, Luxembourg, the Netherlands, Slovenia, Finland, Sweden and the UK, however other member states could join in at any time. Numerous questions remain for debate, including the potential efficacy of a system which operates in only a subset of member states and means that litigants must embark on separate national enforcement procedures in non-participating states; whether the new system should be linked to a unified litigation system across the EU and if so, whether a limited unified patent system can sit comfortably beside a unified litigation system with broader member state participation.

In theory, it is possible according to the Commission’s website that if the Competitiveness Council takes the formal decision to proceed at its March meeting, then all going well, the legislative procedure could be complete by the end of 2011. In reality, so many substantive issues remain to be resolved that it seems extremely unlikely that this timeframe will be met.


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