On February 22, the European Parliament gave its consent to a common patent system in the European Union to be created under the enhanced co-operation procedure. Twelve European Union Member States had requested the co-operation procedure in December, after it became clear that not all states could agree on an EU-wide patent system. All member states except Italy and Spain have since indicated they will sign up to the procedure. These two countries can still join in at any time if they decide to do so.
European Union member states have been trying to agree on an EU-wide patent system for years, but the necessary unanimity has proven impossible to achieve and is not foreseen in the reasonably immediate future. Language issues have been and remain a particularly significant bone of contention. Currently, national patents can coexist alongside a European patent (issued by the European Patent Office, a non-EU body) but the system is complex and expensive: a European patent can be 10 times more expensive than a comparable US patent. A unitary patent system, abolishing differences between member states over patent rights, would arguably make it less expensive and easier for inventors to obtain and enforce their patents throughout the EU. This would help tackle infringement while helping create a level playing field for Europe's businesses as well as those foreign inventors and companies that seek to do business there.
It is now anticipated that the EU Council of Competitiveness will formally adopt the decision authorizing enhanced cooperation on March 9 or 10. The European Commission will then submit two legislative proposals: one establishing the single patent (under the co-decision procedure) and the other on the language regime (consultation procedure).
So, just what is enhanced co-operation? Under the Lisbon Treaty, "enhanced co-operation" can be used to enable a sub-set or discrete group of member states to adopt new common rules when a unanimous EU-wide agreement by all member states cannot be reached. Such a procedure may go ahead only after the Council authorizes it, on the basis of a Commission proposal, and after the European Parliament has given its consent.
The stage is now set for a common patent in those European countries that choose to join. This includes not only significant, larger players like the United Kingdom, Germany, France, the Netherlands, and Sweden, but also the rest of the EU states except for Italy and Spain, which appear to remain in opposition.