You may recall that we reported here that, on 7 March, the Spanish Parliament had voted in favor of a non-binding motion (i.e. Non-Legislative Proposition -NLP) filed by the main party of the opposition (Socialist Party -PSOE), aimed at getting the Government to reconsider its former position and take the necessary steps for Spain to join the Unitary patent system. The NLP was approved thanks to the support of all parties within the Parliament with the exception of the party leading the Government, the Partido Popular.
In the last government control session, the PSOE's representative who had filed the NLP, Ms. Patricia Blanquer, asked Mr. de Guindos whether the Government had the intention to promote Spain joining the Unitary patent system or whether the Parliament's opinion would "fall on deaf ears". The Minister's response was rather clear: "Although Spain has always supported the setting-up of European Community patent rights, we cannot join this system because of our discrepancies with the linguistic regime and the doubts about legal certainty raised by the system". He also pointed out that this was the position held by the former Government under the socialist party and that it was shared by the business associations, especially by the Spanish SMEs.
Whilst Mr. de Guindos only roughly described the reasoning behind the Government's decision, the specific explanation of the circumstances in which the alleged linguistic discrimination and legal uncertainty would materialize was given by the representative of Partido Popular's parliamentary group in the session where the NLP was debated – the minutes of the session (in Spanish), are now available here. In particular, according to the party in Government, if Spain decided to join the Unitary patent system:
(a) Spanish companies would not be able to file European patents with unitary effect ("Unitary patents") in their own official language, Spanish.
(b) Since the Unitary patents would not need to be translated into Spanish in order to produce effects in Spain (unlike the case of "traditional" European patents), the Spanish companies would not benefit from the disclosures therein.
(c) The linguistic regime would also produce legal uncertainty for Spanish companies, which would have to respect the rights conferred by more than 95,000 new patents per year (not translated into Spanish). Spanish companies would, then, bear the costs of the relevant translations.
(d) Moreover, Spanish companies would be forced to plead in English, French or German in invalidity and non-infringement declaratory proceedings which would be heard by the Unitary Patent Court ("UPC") central division. Spanish companies sued for infringement before the local divisions would also have to litigate in a language other than Spanish chosen by the patentee.
Although a number of arguments in favor of joining the Unitary patent system were put on the table (such as a single registration process and an unique payment of fees, saving costs, a simultaneous and identical patent protection in all countries and a Unified Court to litigate), the possibility of entering the system in the "Italian way" (i.e. joining the UPC agreement but not the Enhanced cooperation on Unitary patent protection, as done by Italy before deciding to join the full system) was not discussed, neither were the (negative) consequences of not joining. The latter would include losing the opportunity of hosting a Spanish local division of the UPC, influencing in any way the development of the system and the participation of Spanish judges in the UPC system among other disadvantages.
To conclude, the Minister declared that, even in case of Spain not joining the system, "Spanish companies will be able to use the Unitary patent system once it comes into force in the same way as the companies from any other countries". Ms. Blanquer's and Mr. de Guindo's statements (in Spanish) are available here (from 1:17:40).