As reported here, earlier this month the Committee on Economy, Industry and Competitiveness of the Spanish Congress of Deputies (the Spanish parliament’s lower chamber) approved a non-legislative motion calling on the government to join the unitary patent and Unified Patent Court (UPC) system, with PP (Partido Popular, the party holding the minority government) being the only party voting against it. During this morning’s plenary session of the Congress of Deputies, the MP who had filed that motion, Patricia Blanquer, asked the Minister of Economy, Industry and Competitiveness, Mr Luis De Guindos, whether the government intended to join the unitary patent system. In a short statement, Mr De Guindos announced that the government will not take any steps to join the system, and confirmed that its reasons to continue to oppose the project revolve around the exclusion of Spanish as an official language of the system. The Minister informed the parliament that Spanish business organisations share the government’s concerns over the language scheme, and provided some examples of how Spanish companies would be prejudiced if Spain joined the system. These were a summary of the longer contribution by Ms Tristana Moraleja, MP and PP’s representative to the Committee on Economy, to the debate on the non-legislative motion (minutes now published here), on which more below.

The minutes of the debate record that Ms Moraleja noted that she was initially inclined to support joining the system, but changed her mind after learning more about the background of the project and discussions with stakeholders. Most of the concerns she expressed are language considerations. It is PP’s view that the system discriminates against the Spanish language, and therefore benefits foreign companies. The MP noted that Spanish is an official working language of WIPO and the EUIPO, and that it is a strategic priority for Spain to defend the use of Spanish in European institutions and, more broadly, its position as a language of technology. She referred in particular to:

  • the limitation to the use of English, German or French to apply for unitary patent protection. (Note that this is already the case when applying for a European patent);
  • the fact that unitary patents will not need to be translated to Spanish to be valid in Spain (unlike classical European patents).- she stated that Spanish companies would have to deal with more than 95,000 new patents a year without the benefit of a Spanish translation, so switching costs from foreign applicants to local companies. (Note that this figure is the total number of European patents granted by the EPO in 2016, and it is unlikely that the number of unitary patents granted per year would be nearly as high, at least for many years); and
  • Spanish companies will likely be required to argue validity in a UPC central division located abroad (either as revocation applicant or patentee) and in a language other than Spanish, and that even local companies sued for infringement in a Spanish local division could be forced to litigate in a language other than Spanish as the patentee would be entitled to choose the language of proceedings. (Note that the rules on language selection are more complex than that, requiring use of the official language of the Member State hosting the local division in certain cases, and that Spain would in any event be entitled to offer only Spanish as the language of proceedings in its local division.)

Both Minister De Guindos this morning and Ms Moraleja at the debate on the motion concluded by reminding that Spanish companies will be able to use the system regardless of whether Spain is a part of it or not, so PP sees no reason to change Spain’s position at this stage. But what was not mentioned is that staying out of the system, especially in its crucial formative years, would mean that Spanish judges and representatives will not be able to influence its development; should Spain decide to join at a later stage, it will have to accept its structure and acquis as it is then. Also, even if Spain remains out of the system, Spanish companies may in certain circumstances be exposed to some decisions of the UPC under the provisions of the Brussels I Regulation, such as orders for provisional measures.

Neither PP’s representatives nor any of the MPs who expressed their parties’ support for the system mentioned the possibility of Spain joining the UPC Agreement but not the enhanced cooperation on the unitary patent, as was Italy’s position prior to its decision to fully join the system. The benefits of that scenario would include: Spain having a say in important matters such as the organisation of the court or its rules of procedure, Spanish judges being able to contribute to shape UPC jurisprudence, and Spanish representatives being able to represent local companies in UPC proceedings. Spanish companies would then have the benefit of a Spanish local division of the UPC, while any European patents valid in Spanish territory would still have to be translated and published in Spanish.