For many, many years Europe – what is now the European Union has had a goal of a single European patent – Europe has a fairly unified market with substantially more consumers than the USA. What lets it down is compared with the USA is, among other things, the lack of a fully unitary patent system. Costs of applying for a patent covering the whole European Union are variously put somewhere around 10 or more times the costs in the USA1.

Initial proposals started before the negotiations even for the Community Patent Convention. This convention was completed in the 1970s but has never been ratified. Languages remain a major stumbling block. Despite this, the European Patent Convention (the EPC) has provided a substantial amount of uniformity in the substantive requirements for obtaining patent protection across the EU.

However, a lack of a harmonised litigation system has been seen to be seriously damaging to a “unitary concept”. Already courts in different countries decide cases on the same patents with similar facts in different ways. As a result, over the last few years, judges working in the patent field across Europe have met with a view to understanding each others’ systems, and then to design a more unified system – originally called the European Patent Litigation Agreement. Detailed rules have been prepared although there remain some aspects which still require to be agreed.

With the political growing importance of innovation in the EU, the European Commission “adopted” this initiative.

However, in March this year the Court of Justice for the European Union (CJEU) decided that the proposed agreement on the European Patent Litigation System, and in particular the court, the EEUPC, was not compatible with the European Union Treaties. Some commentators were not surprised. Jeremy Philips, writing on the IPKat blog2, regarded the decision as entirely predictable; Sir Robin Jacob, until very recently, one of the UK’s leading judges in the patent field, forecast that the no such system would be in place for at least another 20 years3.

The decision was appropriate, in that the CJEU must, as the arbiter of the European Union constitution, properly reflect the constraints that politicians have imposed on that system. However, it is unfortunate that, in adopting a principle that one institution of the European Union should not prejudge the position of other institutions of the EU – the “principle of institutional balance”, the Advocates General4, and likewise the CJEU in their Opinion, have left a gap in what, if any alternatives might work. Indeed are there any alternatives. Some commentators say not, and many say that it will still be a lifetime before there is a final agreement on a common court.

Meanwhile however, the Commission is continuing with its proposal on enhanced co-operation in relation to a “Unitary Patent”. The Competitiveness Council Decision approved that decision on 10 March5, two days after the CJEU Opinion was handed down. The Commission to produce the draft text for the EU Patent. This was due to be produced by 31 March 2011. Following the CJEU ruling, the Commission was still upbeat about its ability to keep the EU Patent moving. However, without a unitary court, commentators say that a unitary patent will almost inevitably be spurned by users6. There is little confidence from users that the courts in countries which have relatively little (or in some cases almost no) experience of patent litigation can undertake the role of determining whether a unitary patent right be revoked or remain in force through the EU. Experience of the PCT many years ago shows that businesses are conservative when it comes to such potentially valuable rights, and if compelled to submit to a unitary jurisdiction in which they do not have full confidence they are likely to revert to using a national system where they have somewhat more confidence and not all their eggs are in one basket. Views from members of the Expert Group are even more forthright7, and recent discussions in the UK have indicated that there is no enthusiasm for final implementation of a unitary patent without an agreeable unitary court8.

But is this really the case – or will users be pragmatic. The Commission proposals set a price tag for a unitary patent which is low – very low. While those who can afford the security of a patents individually granted in each member state of the EU may continue to do so, those who cannot, ironically the smaller enterprises, may well opt for a unitary patent at a lower price, and hope for the best. For their sakes we should be pressing forward with proposals for a unified Court and overcoming the objections of the Court of Justice as soon as possible.

Click here for further information on the Patents County Court.