In April, we reported that the European Commission adopted the Single Market Act. The Single Market Act is a group of 12 initiatives intended to boost growth and enhance confidence in a single, European market. A key initiative is supporting research and innovation by establishing a unitary patent protection and a unified patent litigation system. Currently, while it is possible to file and prosecute a single patent application at the European Patent Office (EPO), there is no “European patent.” Instead, following the grant of a European patent, the applicant has to request validation of the grant in each member country where the applicant wants patent protection. This imposes a significant financial and administrative burden for applicants wishing to validate a granted European patent in more than a few countries.  

Taking a significant step toward realizing the goal of a single patent, on June 27, 2011, 25 European Union member countries agreed to the terms of two key regulations involving the rules and procedures for issuing a new EU single patent. EU officials are optimistic that the single EU patent could become a reality within two years. The agreement includes details about the translation requirements for the new EU patent, and includes a provision keeping English, French and German as the official languages for EU patents.

The agreement paves the way for EU member states to work with the European Parliament on the final form of the proposed EU patent. European Single Market Commissioner Michel Barnier has indicated that this phase of the effort should not take more than six months, and that a unitary patent in Europe could be a reality within the next two years.

Under this new agreement, a special committee set up with the EPO will issue a single EU patent that will be effective in 25 EU member countries. It will be possible for applicants to submit applications in any of the more than 20 EU official languages, but they must be either submitted in or accompanied by a full translation into one of the three official EPO languages.

The agreement is not universally accepted. Italy and Spain, which voted against the original proposal in the Council of Ministers because Italian and Spanish were not included as official languages, continued to object to the agreement. To move the agreement forward despite those objections, the EU used a special legislative procedure called “enhanced cooperation” in the Council of Ministers, allowing the Council to effectively bypass the vetoes by Spain and Italy. This is only the second time this special EU legislative procedure has ever been used, and it appears that the Council is determined to make a single EU patent a reality. Italy has since filed a legal challenge before the European Court of Justice, objecting to the Council’s use of the “enhanced cooperation” legislative procedure to negate Italy’s vote.

There is still work to be done, but a European patent is one step closer, and would provide significant benefits, at reduced costs, to companies that want to protect their products in Europe.