For more than 20 years Spain and Italy have successfully blocked all attempts to introduce a community patent. In order to break the deadlock, the EU Commission proposed to use the instrument of enhanced cooperation created by the Lisbon Treaty to achieve progress for a restricted number of EU member states. All EU member states except Spain and Italy were prepared to follow. On April 13, 2001 with the consent of the Parliament and authorised by the Council, the Commission presented two draft regulations for a European patent with unitary effect in the participating member states (see blog of 13/04/2011).
On May 31, 2011, Italy lodged an appeal with the CJEU against the decision of the Council authorising the introduction of a European patent through enhanced cooperation, Italy alleging “to defend the values and goals of the Union”. Read the press release of the Italian Ministry of Foreign Affairs here.
Some sources report that Spain has also filed an appeal.
The legal action comes even before the Commission has submitted proposals how to deal with the problem of jurisdiction for the patents with unitary effect. It may be assumed that the users of the European patent system will be reluctant to use a unitary patent which can be invalidated as a whole by any court throughout Europe which is competent under national law. According to the CJEU, the system foreseen for the community patent was not compatible with EU law.
Read opinion 1/09 of the CJEU here.
Reported by Dr. Rudolf Teschemacher