Member states are scheduled to endorse draft legislation on 10 December that would create a unitary European Union patent after diplomats approved new wording this week and MEPs indicated their support.

On Monday (19 November), MEPs, sitting in an extraordinary meeting of the European Parliament’s legal affairs committee, gave cautious backing to the new text agreed earlier in the day by diplomats representing member states, after discussions with Parliament representatives leading on the issue.

Both sides need to agree on the wording of the legislation before it can become law and before the first EU unitary patents can be granted.

Most MEPs sitting in the committee said that they were satisfied with the latest draft, but they will not give a definite vote in favour until ministers meet for a competitiveness council on 10 December and formally approve it. Only Green MEPs indicated that they were dissatisfied with the latest compromise. The vote is expected to take place in the Parliament’s full plenary session on 11 December.

Despite agreement between member states and the Parliament earlier this year, the process has been held up because of discontent over the role that the European Court of Justice (ECJ) would play in the patent structure. MEPs reacted with dismay to a deal between leaders of member states at their summit on 29 June that changed the original text, which had earlier been approved by Parliament.

ECJ concerns

Leaders decided to locate the new patent court’s central division in Paris, with smaller specialised offices in Munich and London. In return, they acquiesced to the UK’s desire to weaken significantly the role of the ECJ, boosting the authority of the new patent court.

MEPs, keen to maintain the authority of the ECJ, refused to back the compromise, saying that it went against previous agreements and could be illegal.

Under the latest draft, the clauses of the original text of the legislation – which would hand authority to the ECJ and were removed by leaders in June – have not been restored. But most MEPs are satisfied that ECJ involvement will now be sufficient and that the proposal complies with EU law. They have also received assurances that the Parliament will be consulted if there are any more changes to the way the patent court operates.

“The patent court shall be subject to the same obligations as the national courts,” Michel Barnier, the European commissioner for the internal market, told the legal affairs committee on Monday.

This meant, he said, that it would be “firmly rooted at the heart of the EU’s judicial system” and it would be for the ECJ to interpret the regulations setting up the patent system. The patent – to apply to 25 of the EU’s 27 countries because Italy and Spain refused to take part – has taken more than 30 years to realise.

The Commission hopes that the patent’s two regulations will be adopted on 21 December and that an inter-governmental agreement to create the patent court will be signed on 18 February. Ratification of this agreement is necessary before the unitary patent system can come into effect.

The European Commission hopes that, if this timetable is adhered to, the first unitary patent would be granted in April 2014.

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