On March 10th, the EU Council approved a proposal that would permit the European Patent Office to grant a unitary (single) patent for most EU nations (the “EUP”). All EU nations except Italy and Spain have said they would participate. Unlike the failed Community Patent proposals, translation into a national language of each country would not be required at the time of patent grant. The European Commission has been working on an implementing regulation, which is expected to be published within two to three months. Establishment of the EUP is very likely within a year, because of the convergence of political will and industrial support for an EUP less expensive than the current national patent system. The EU Council press release with links to the council documents is here.

On March 8th, the EU Court of Justice (ECJ) issued an opinion advising that a proposal for a European Patent Court (PC) that would include both EU and non-EU nations, and would not be subject to ECJ oversight, would be inconsistent with the foundational EU treaties. However, paragraph 82 points to tri-national Benelux Court of Justice as an arrangement consistent with the EU treaties, suggesting that an EUPC with only EU members would be legally acceptable. Here are links to the ECJ press release and opinion.

In a press release following the ECJ Opinion, the EU Commission welcomed the opinion, said it would work quickly to find an appropriate way going forward for the patent litigation system and said that the opinion should have no impact on the unitary EUP proposal. That press release is here. Because the EUPC proposal will lag behind the EUP proposal and the EUPC offers less of a financial advantage for European industry, the political momentum probably will drop and may not be sufficient to clear the last hurdles for a EUPC.