Friday, 2 October 2015

EU accepts Italy in the Unitary Patent

Four years ago when the negotiations about the unitary patent where still ongoing, the EU authorized 'enhanced cooperation'. The unitary patent could proceed without Italy and Spain. Now four years and a couple of court cases later, it seems that the unitary patent is really about to happen.

About 2 month ago Italy asked if it could join the enhanced cooperation after all (we reported earlier).  This request was granted today. The step is not totally unexpected though as the EU has only limited grounds on which such a request could be denied.

This means that Italy is now the 26th member of the enhanced cooperation on the Unitary Patent protection. Note that Italy still needs to ratify the Agreement on a Unified Patent court, just like most of the other participating member states.

The joining of Italy in the enhanced cooperation puts a definite end to the ambivalent position Italy had in the system: Italy was not part of the enhanced cooperation--so that unitary patent would not be valid in Italy. Yet Italy had signed the Agreement on a Unified Patent Court so that after ratification it would have a court competent to judge on unitary patents. If Italy now ratifies the Agreement, unitary patents will be valid in Italy and a local Italian court can judge on those patents.

At present only Spain and Croatia do not participate in the enhanced cooperation. In case of Spain this is by design. They were not part of the enhanced cooperation from the beginning. In case of Croatia this is because they joined the EU after the enhanced cooperation was started.

Both Spain and Croatia are free to follow the example of Italy and can still join the enhanced cooperation. In case of Croatia this would mean that some pending patent applications will lose their eligibility for unitary patent protection. (What I've called the Croatia condition.) To maximize the legal confusion, Croatia should join within a few years after the unitary patent system has started. 

The Commission is calling 'on all remaining participating Member States to ratify the Unified Patent Court Agreement as soon as possible so that the Unitary Patent package comes into force by the end of 2016'.

Photo "Pasta2" by Clare Bell obtained via Flickr under CC BY 2.0 license (no changes made).

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