Friday, October 02, 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).

Wednesday, July 15, 2015 Notification letter Italy availabe

As reported earlier Italy has asked to join the unitary patent. I've asked European council to send me the content of the notification letter and they have kindly done so. We have made the letter available here. (The notification letter itself is not online only a summary.)

There are no great surprises in the letter. The opening section is as follows:

 I wish to inform you that the Italian government has further examined all legal and institutional issues regarding Regulation No 1257/2012 of the European Parliament and of the Council of 17 December 2012, implementing enhanced cooperation for the creation of unitary patent protection, and Council regulation (EU) No 1260/2012 of 17 December 2012, implementing enhanced cooperation for the creation of unitary patent protection with regard to the applicable translation regime.

I'm surprised the Council decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (2011/167/EU) is not mentioned. This document contains a list of all participating member states, a list from which Spain and Italy are absent.

The letter continues:

On the basis of this thorough evaluation, Italy has determined to request participation in the enhanced cooperation for the creation of unitary patent protection, pursuant to Article 331 of the Treaty on the Functioning of the European Union.

Article 331 of the Treaty on the Functioning of the European Union regulates how an EU state can request ascension to enhanced cooperation.


According to article 331 any Member State that wishes to participate in enhanced cooperation in progress shall notify its intention to the Council and the Commission. The first notification is linked above. I'm assuming the commission received a similar letter.

Within four month of receiving this notification the Commission will confirm the participation of Italy. The Commission can adopt transitional measures if that is necessary with regard to the application of the acts already adopted. Since the unitary patent system has not yet started, I do not expect such transitional measures.

The last section of the letter reads:

The accession to enhanced cooperation on the European Patent does not prejudge Italy's well established position on the EU language regime and does not constitute a precedent.

Italy together with Spain challenged the legality of the enhanced cooperation (joined Cases C-274/11 and C–295/11). The unitary patent has more or less adopted the current language regime of the European Patent Office. This system favors English, German and French. Both Italy and Spain are unhappy with this decision. Italy argued that the enhanced cooperation was a ploy to derive Italy of its right to oppose the language arrangements. Moreover, they argued that the enhanced cooperation would distort competition by favoring undertakings working in English, French or German.

However these arguments were rejected in 2013. A second challenge by Spain without Italy was rejected about two months ago. Apparently, Italy had waited until this decision with joining the unitary patent.

Personally, I'm very glad that Italy has made this decision. A unitary patent is a lot less attractive when both the fourth (Italy) and fifth (Spain) EU economy are absent. Currently, it looks likely that from the ten largest EU economies, 8 will participate; Spain and Poland being the outliers.

Photo "Cappuccino Loves Italy" by roevin | Urban Capture obtained via Flickr under CC BY 2.0 license (no changes made).

Monday, July 13, 2015 Italy asks EU: Can we join unitary patent?

Italy has sent notification to the EU of "its intention to participate in the enhanced cooperation in the area of the creation of unitary patent protection and in the enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements".

The department for European affairs has a statement on its website. In our translation:

This morning I wrote to the Commissioner for the internal market, industry, entrepreneurship and SMEs, Elżbieta Bienkowska, and the presidency of Luxembourg announcing the Italian decision to join the European Union unitary patent.

What we have taken is a necessary and useful choice for Italian companies, that does not affect our position determined to defend the role of the Italian language in the European institutions.

Italy and the European Union need innovation to restart and I think this is a step in the right direction.

Until now Italy was the only country in the curious position that it had signed the Agreement on a unified patent court, but was not a party to the EU regulations on the unitary patent. In other words, Italy could have a court with the power the rule over unitary patents, even though those patents would not be valid in Italy.

Italy has now asked the EU to be counted in in the 'enhanced cooperation'.  As I remarked before any EU state can join the enhanced cooperation (Article 20 of the European Union Treaty). This means that it is virtually certain that Italy will join the unitary patent.

For unitary patents to be valid in Italy it is also needed that Italy ratifies the Agreement on a unified patent court. Given the fact that they have asked to join the unitary patent it seems highly likely that they will do so.  Thus it seems likely that unitary patent will be valid in Italy also.

After Italy there are two more countries that are not party to the EU regulations (Spain and Croatia). They could make the same move as Italy, though in case of Spain this seems unlikely. Interestingly if Croatia joins, patents that were filed before 2008 become ineligible for unitary effect. Should Croatia join after the unitary patent started we have the legal situation in which older patent applications retroactively loose eligibility for unitary effect.
 
Some countries who are party to the enhanced cooperation have announced that they will not ratify the Agreement (Poland). In practice this will amount to the same thing (unitary patents will not be valid, the unified court will have no jurisdiction).

Photo "Italy" by Moyan Brenn obtained via Flickr under CC BY 2.0 license (no changes made).

Monday, June 03, 2013 Spain's arguments against unitary patent published

Last Friday the pleas were published that Spain raised in the annulment actions C-146/13 and C-147/13 aimed at the EU regulations for the Unitary Patent.

Friday, April 26, 2013 The difference between Spain and Italy in the Unitary patent

Both Spain and Italy have a special position in the unitary patent. Spain is not a party to any of it, but Italy is in the middle.