In a setback to the creation of a single European patent, on 8 March 2011 the Court of Justice of the European Union (CJEU) ruled that the current proposal to set up the European and Community Patent Court to oversee patents would deprive national courts and tribunals of power and, thus, be incompatible with existing European Union (EU) law.  Despite the CJEU ruling, the Council of Competitive Ministers met two days later on 10 March to authorise plans to establish an enhanced cooperation for the creation of a single, European patent without the consent of Italy and Spain. This development builds on momentum from February, when the European Parliament had authorised the creation of an enhanced cooperation (see ACA Newsletter – Education Europe, February 2011), again despite opposition by Italy and Spain. These two member states object to the plan to install English, French and German as the official languages for the new patent scheme, although these three languages are currently used as the official languages of the European Patent Office (EPO).

Aside from the jurisdictional issue, time and efficiency are central to the current patent debate. The proposed unitary European patent would streamline the current costly and arduous patent process, which requires validation of a patent grant in all of the EPO’s 38 member states. In addition, existing patents are subject to full translation of the patent in the official language(s) of a member state.

Across the Atlantic, the US Senate passed legislation in the form of the America Invents Act, a bill similarly focused on efforts to speed up and simplify the patent process. The bill, which still needs approval by the House of Representatives, would align the US patent system to the first-to-file system, which is used in most countries. Under the current US system, patents are granted by date of registered invention. Critics of the proposed system assert that the new patent system would undermine small and medium enterprises (SMEs) and give overwhelming advantages to large corporations that have the resources to file patent applications swiftly.

Court of Justice of the European Union

European Commission

US Senate