Reform of the current European patent protection system—whereby European patents are actually a bundle of national patents that must be enforced separately in each European jurisdiction—has been on the political agenda for some 30 years. Proposals for a unitary patent covering most (but not all) of the EU member states have recently been approved by the Council of the European Union, Competitiveness Council (Council). On the other hand, plans for a new Community Patents Court have been declared unlawful by the Court of Justice of the EU (CJEU).

In October 2010, negotiations to establish a community patent valid in all member states foundered. Undeterred, a number of member states indicated their intention to request “enhanced cooperation” to establish a unitary patent applicable only in those participating countries. Enhanced cooperation is a procedure available to allow a minimum of nine member states to implement common measures in circumstances in which unanimity cannot be reached between all member states. Twenty-five EU member states signed up to the enhanced co-operation proposal, with only two member states, Italy and Spain, staying outside for the time being due to objections relating to language.

On March 10, 2011, the Council authorized the enhanced cooperation regime. The next stage will be for the commission to prepare and present its detailed formal proposals for the implementation of the new unitary patent.

The current proposal is that the unitary patent should coexist with the current European and national patent systems. The unitary patent (which does not yet have an official name) would be designated as a specific category of European patent, filed with and granted by the European Patent Office and designating the participating member states on a unitary basis. The unitary patent would be of autonomous nature and provide equal protection throughout the territories of the participating member states.

In a separate development, a proposal to create a single European Patents Court which would have exclusive jurisdiction to hear patent disputes for community patents was the subject of an Opinion (No. 1/09) from the CJEU on March 8, 2011. In that case, the CJEU held that the proposal was incompatible with the legal order of the EU as it would divest the national courts and the CJEU of jurisdiction to deal with disputes relating to patents. Although the judgment dealt only with the system for resolving disputes relating to the community patent (as opposed to existing European patents or even the unitary patent), the judgment raises doubts as to whether a single court to determine patent disputes in Europe is constitutionally possible. Indeed, in 2007 the Legal Services Division of the European Parliament gave an opinion that a single court in which to litigate European patents would be unlawful for reasons similar to those given by the CJEU.

The forthcoming detailed proposals for the unitary patent will undoubtedly be closely scrutinized for compliance with EU law and difficult questions remain in relation to whether and, if so, how an acceptable framework for resolving patent disputes can be established. Without a single court system in which to litigate a new unitary patent, differences between national courts are likely to remain a significant feature. Indeed, the experience in other areas of intellectual property governed by European Community laws (particularly trademarks and supplementary protection certificates) might be seen as justification for eschewing a unitary patent altogether.