Unitary Patents: Spain and Italy throw in their 2 cents

Compared to Germany, France, the Netherlands and Switzerland we don't do very well in the European patent application stakes but there are two large European countries that do even worse than us, namely Spain and Italy. According to the European Patent Office there were 4,088 patent applications from Italy in 2010 and 1,436 from Spain compared to 27,354 from Germany, 9,530 from France, 6,742 from Switzerland, 5,957 from the Netherlands and 5,402 from the United Kingdom.

Most people in the United Kingdom who have an opinion on the subject believe that a European patent for the whole European Union would be a very good thing. At page 25 of his report, Professor Hargreaves recommended that the UK "should attach the highest immediate priority to achieving a unified EU patent court and EU patent system, which promises significant economic benefits to UK business" which recommendation the government has accepted. While we may not be good Europeans in every respect we have always been supportive of the EU patent. One of the reasons for the Patents Act 1977 was to ratify the Community Patent Convention of 1975.

Over the years there have been two stumbling blocks:

• the languages to be used; and
• enforcement.

The language issue is the insistence of the Spanish and Italian governments on parity of their languages with English, French and German as at OHIM. As for enforcement the Court of Justice of the European Union held on that the Draft Agreement on the European and Community Patents Court was incompatible with EU Law (see my article of 8 March 2011).

The response of the rest of the EU has been to press ahead with a common European patent for all the member states except Spain and Italy to be known as a "unitary patent" (see my article of 29 April 2011 "The Community patent is dead - long live the unitary patent"). Even though - or probably because - the proposed unitary patent will have nothing to do with them the Italian and Spanish governments have launched actions in the Court of Justice against the European Council to annul the decision of 10 March 2011 to authorize enhanced co-operation in the area of the creation of unitary patent protection.

Although both governments want essentially the same relief their arguments are different. The Italian case is that the decision is ultra vires, incompatible with the objectives of enhanced co-operation, introduced without sufficient consultation and erects a barrier to trade. The Spaniards argue that the Council decision is a misuse of power and fails to respect the judicial system of the EU. Alternatively, the Spanish government says that it is possible to have enhanced co-operation without a dispute resolution system, that the Council decision is discriminatory and discriminatory and disregards the rights of the Kingdom of Spain.

The Spanish and Italian governments are not the only ones to have a go at the unitary patent today. The Guardian published an article by Richard Stallman of the Free Software Foundation entitled "Beware: Europe's 'unitary patent' could mean unlimited software patents." Now one can be for or against software patents and at the same time for and against the unitary patent because they are two quite separate issues. Indeed, the position of Professor Hargreaves and indeed Her Majesty's government seems to be that they are against software patents (see page 62 of his report) but for the unitary patent (page 25 as I mentioned above). Mr. Stallman mentioned Hargreaves recommendation against software patents but omits to mention his support of unitary patents.

The reason why Professor Hargreaves can be for unitary patents but against software patents is that any unitary patent will be a European patent and art 52 (2) (c) of the European Patent Convention excludes from patentabilty programs for computers as such. That exclusion will remain whether we have a unitary patent or not. Of course, the words "as such" will continue to be seized upon by clever patent agents to draft specifications for software implemented inventions but that will happen anyway regardless of whether patents are granted separately for 25 EU member states or for the whole EU minus our pals in Spain and Italy.

I shall keep you informed of developments.