07 December 2010

Friday's Competitiveness Council Meeting will be Decisive for EU Patent (updated)

Michael Barnier and Vincent van Quickenborne fighting for the EU patent
After it turned out in the extraordinary Competitiveness Council meeting of 10 November 2010 that, due to the controversy regarding a commonly accepted language regime, "there will never be unamity on a EU patent" (see this post and the press conference of Mr Vincent Van Quickenborne), the "willing" EU member states intensified the discussion on (and apparently their efforts towards) an enhanced co-operation, i.e. an EU legislative agreement among a small group of EU members to launch a diminished EU patent based on the 'Munich' three languages system, as proposed by the European Commission on 30 June 2010.

Now, the EU Council published the agenda for the next Competitiveness Council Meeting, dated 10 December 2010, which, among other topics, also includes a (rather poor statement on a) debate on "the way forward for the establishment of a future EU patent system (17229/09), including the option of starting an enhanced cooperation process between several member states". Even less productive for the general public is, as tweeted by my colleague Axel H Horns, EU document 16946/10 having the promising title "The European Union Patent: Way forward and possible enhanced cooperation - Exchange of views", which is, precautionarily, not accessible at all.

Anyway. It is expected that Frenchman Michel Barnier, the EU commissioner for internal market and services, will present a proposal to the Competitiveness Council on the next meeting, which Mr Van Quickenborne expects to be "decisive on the single EU Patent" in a recent tweet.
There have been reports that Sweden, Germany, the United Kingdom, Ireland, the Netherlands, Slovenia and Estonia intend to formally apply for a common patent agreement based on enhanced cooperation. Moreover, France, the Czech Republic and Malta may also jump on the bandwagon, making all together 10 supporting states - one more than the required number of 9 supporting states according to the Lisbon treaty.

Further to that minimum number of participating states, an enhanced cooperation also requires a qualified majority of all member states, i.e. a proposal must attract 255 out of a total of 345 votes and represent at least 62% of the total EU population. As a quick sample calculation, the above 10 supporting countries would, for instance, only represent 140 votes and 40,7% of the EU population, while the most reluctant countries Italy, Spain, and Poland, together with, let's say, Portugal would have a blocking minority of 95 votes (and 27,5% of EU population). This may illustrate that even the enhanced cooperation will not be a fast selling item either, as expected by Margot Fröhlinger, Director of Knowledge-Based Economy inside the DG Internal Market, on the Munich-based IP Business Congress in June this year.

My personal feeling, however, is that it may turn out in the end that the enhance cooperation approach - which has only been used once before (in the field of divorce law) and does not appear overly appropriate for implementing a Europe-wide protective right with associated court system - only was a "red herring" to demonstrate to the opposing countries the assertiveness and strong will to succeed of the supporting countries. I am pretty sure that there will be a certain political or even monetary price at which countries like Italy and Spain - that are in danger of becoming subject to the massive European debts crises - may change their minds. In support of my expectation, Mr , Secretary General of FICP and attendee of this month's IP Summit in Brussels tweeted that he was "shocked to hear one MEP optimistic that if Spain needs a bail-out it might pull it's objection to EU patent". However, this kind of "political persuasiveness" is not at all defamatory among countries and has a long tradition as major lever (some say horse trading) in EU decision processes.
This attempt will be the very final chance of the Belgian Presidency to effect some essential move towards a (somehow) unified EU patent, before Hungary and then Poland will take over, both countries having a rather reserved view on the EU patent based on the proposed three-language system.

UPDATE: In a today's Bloomberg/BusinessWeek article it is reported that 10 EU member states (France, Germany, Estonia, Denmark, Finland, Lithuania, Luxembourg, the Netherlands, Slovenia and Sweden) have sent this joint letter to EU commissioner Barnier on December 7 to push to create a Europe-wide patent system [via enhanced cooperation] since "it is clear that the objective of the creation of a unitary patent protection in the territory of the EU cannot be attained within a reasonable period of time by the Union”.

According to that report, a determined Commissioner Barnier told reporters in Brussels today that "we are ready, we are prepared, to start the procedure for creating a more harmonized EU patent system" and that "the commission will present proposals on the future content of a single protection for patents across the EU [based on the latest compromise proposed by Belgium]", i.e. the compromise (non-paper) proposed by the Belgian EU Presidency, which failed on the Competitiveness Council held in Luxembourg on 11 and 12 October 2010 (see earlier reports here and here).

Perhaps Barnier's the most important message was that
many more than the 10 countries that signed the letter will join the enhanced cooperation for creating a EU-wide patent.