Enhanced cooperation is a procedure available to allow a minimum of nine EU Member States, i.e., one third of the total number, to implement common measures in circumstances where unanimity cannot be reached between all States.
Negotiations with respect to establishing a Community Patent valid in all member states have ground to a standstill, due primarily to translation issues. In October 2010, a number of Member States indicated that they were considering whether they could engage in enhanced cooperation to establish a unitary patent valid between them. In December 2010, the European Commission released a proposal for a Council decision authorising enhanced cooperation, which set out the legal basis for the enhanced cooperation and the envisaged measures implementing the cooperation.
In February 2011, the European Parliament provided its consent to the proposed enhanced cooperation. On 10 March, the Council formally adopted the decision authorising enhanced cooperation.
The next stage in the enhanced cooperation process will be for the Commission to prepare and present its formal proposals for the implementation of the new unitary patent.
The current proposal is that the unitary patent should be based on the December 2009 text (Council document 16113/09). It would provide that the unitary patent should coexist with the current European and national patent systems. The unitary patent would be autonomous in nature and provide equal protection throughout the territories of the participating Member States. It could only be granted, transferred or revoked, or may lapse, in respect of those territories as a whole.
Significantly, the enhanced cooperation procedure approved by the Council relates only to the nature and effect of the unitary patent per se. It does not govern the forum in which such a patent is to be litigated. On 8 March 2011, the Court of Justice of the European Union (CJEU) handed down its Opinion No 1/09, in which it found that the proposed agreement on the Community Patents Court is not compatible with the provisions of the European Union Treaties. While the issues of the nature of the unitary patent and the forum in which it is litigated are legally distinct, they are linked in practical and commercial respects. It is not known whether the CJEU’s Opinion with respect to the proposed Community Patents Court will affect the process or timing of finalisation of the enhanced cooperation with respect to the unitary patent.