Protecting the national interest?

Patent pending

A British referendum is just one of the obstacles that lies in the path of efforts to simplify the governance of patents in Europe. 

On 8 March, the European Union's General Court will give its opinion on whether plans to set up a new court to deal with patent disputes are compatible with the EU's treaties. The patent court would not be a specialist court of the EU but a separate international court because countries that are not members of the EU, such as Switzerland, Turkey and Croatia, have signed up to the European Patent Convention.

In July 2010, an advocate general of the General Court gave her opinion that the creation of such a court would not be compatible with the treaties. The problems that she saw were that the way that it has been proposed to set up the patent court did not guarantee the pre-eminence of EU law, there were not adequate remedies in the event of infringement of EU law and the language regime (based on three languages) did not safeguard the right of defence. Judges at the General Court follow the preparatory opinion of an advocate general in 80% of cases.

Two days after the judges give their opinion, on 10 March, the EU's ministers responsible for competitiveness are expected to approve a request for 12 member states to set up a common patent regime using the mechanism of enhanced co-operation.

The expectation is that 25 countries will take part, but not Italy and Spain. The Spanish government has said that it will challenge the move in the European Court of Justice.

In a letter published in the Financial Times on 28 February, Diego López Garrido, Spain's Europe minister, said that the EU's treaty specifies that enhanced co-operation should not distort competition between member states. “I can't think of a more explicit EU treaty injunction against enhanced co-operation in the field of industrial property,” López Garrido wrote.

Spain believes that allowing patent applications in English, French and German, as the current compromise envisages, would discriminate against Spanish entrepreneurs. It argues – knowing that this would not be acceptable to France or Germany – that a regime based on English alone would be fairer.