Italy and Spain filed applications before the European Court of Justice in early June 2011, seeking to annul the EU Council’s Decision of 10 March 2011, which authorized cooperation among member states for the creation of unitary patent protection.

The applicants allege that the cooperation agreement was not properly approved and will adversely affect the internal EU market, “introducing a barrier to trade between Member States and discrimination between undertakings, causing distortion of competition.” While a deadline for public comments on legal challenges to the decision has passed, member states may still file observations.  

As we reported in Issue 10 of this Bulletin, the European Court of Justice found unlawful a draft agreement that would have created a European and Community Patents Court.  

In late June, the EU’s Competitiveness Council reached agreement under the authority of the March decision on two proposed regulations that lay out a general approach for implementing unitary patent protection. Under the current system, the European Patent Office grants patent titles, but once a European patent is granted, it becomes a national patent subject to individual member rules and must be validated in each member state. The new regulations would ensure uniform protection for inventions and set forth translation arrangements. The matter next moves to the European Parliament for negotiations.