As announced in Official Journal C 156 of 2 June 2012, the Commission decided to withdraw this proposal, which had become obsolete.

The Council exchanged views on the way forward for the future establishment of a single EU patent system and, in particular, the possibility of initiating enhanced cooperation between several Member States .

A large majority of delegations asked the Commission to present a formal proposal for initiating enhanced cooperation. The Commission announced the submission of such a proposal on 14 December 2010.

The majority of delegations considered that enhanced cooperation, as provided for in the EU treaty, is the only option for making progress on the creation of a unified EU patent system .

The Italian and Spanish delegations strongly opposed the idea of initiating enhanced cooperation on the basis that the requirements for engaging in that process have not yet been met.

The Hungarian delegation, which will be holding EU Presidency from January 2011, expressed its commitment to taking the work forward with a view to achieving an agreement on this issue as soon as possible.

Following ministerial discussions on 11 October and 10 and 25 November, the Belgian Presidency concluded that it is not possible to reach the required unanimity on a language regime for creating a EU patent system. Therefore a number of delegations expressed their interest in moving ahead on the basis of an enhanced cooperation.

The procedural steps to initiate enhanced cooperation in the area of unitary patent protection can be listed as follows:

· it is to be used only as a last resort after verifying the impossibility of reaching unanimity;

· an application submitted to the Commission by Member States wishing to pursue among themselves an initiative blocked at the level of the Union; there must be at least nine countries wishing to participate;

· the Commission assesses whether the request should be accepted. After acceptance, it sends the Council a proposal for authorisation. This proposal must define the framework in which the enhanced cooperation would be carried out;

· the Council grants authorisation by qualified majority, after obtaining the consent of the European Parliament;

· once the cooperation has been authorised, all members of the Council may participate in its deliberations, but only the participating countries take part in the votes;

· enhanced cooperation is open at any time to member states wishing to join in.

3057

In public deliberation, and at the request of the Netherlands and Swedish delegations, the Commission expressed its opinion on the possibility of initiating an enhanced cooperation procedure on a future EU patent system.

The request follows a letter sent by several Member States asking the Commission to consider the feasibility of proposing enhanced cooperation in this area, should it receive a request to propose such cooperation in the near future.

Several Member States expressed views on this issue and the Council legal service provided an explanation of the compatibility of this kind of enhanced cooperation with the EU treaty, as well as the procedural steps to initiate it.

The Presidency announced that this topic would be added to the agenda for the next Competitiveness Council meeting scheduled for 10 December 2010.

3049

The Council held a debate on an enhanced patent system in Europe and adopted conclusions on the main features of the future patent system based on two main pillars comprising:

· the creation of a unified patent litigation system that would have exclusive jurisdiction in respect of civil litigation related to the infringements and validity of EU and European patents, and would consist of a court of first instance (with a central division and local and regional divisions), and a court of appeal;

· the creation of an EU patent as a unitary legal instrument for granting patents valid in the EU as a whole . In a public session the Council also agreed on a general approach (i.e. an agreement in principle pending the opinion of the European Parliament) on a draft regulation establishing the EU patent.

Recalling that enhancing the patent system in Europe is a necessary prerequisite for boosting growth through innovation and for helping European business, in particular SMEs, face the economic crisis and international competition, the Council considers that such an enhanced patent system is a vital element of the Internal Market and that it should be based on two pillars, i.e. the creation of a European Union patent ("EU patent") and the setting up of an integrated specialised and unified jurisdiction for patent related disputes thus improving the enforcement of patents and enhancing legal certainty.

The Council conclusions concern the main features of the European and EU Patents Court . This should have exclusive jurisdiction in respect of civil litigation related to the infringement and validity of EU patents and European patents. The EEUPC should comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance should comprise a central division as well as local and regional divisions. The European Court of Justice shall ensure the principle of primacy of EU law and its uniform interpretation.

The Council considers that these conclusions should form part of the overall final agreement on a package of measures for an Enhanced Patent System in Europe comprising the creation of a European and EU Patents Court (EEUPC), an EU patent, including the separate regulation on the translation arrangements, an Enhanced Partnership between the European Patent Office and central industrial property offices of Member States and, to the extent necessary, amendments to the European Patent Convention.

The Lisbon Treaty, which entered into force on 1 December 2009, amended the EU's two core treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (EC Treaty). The latter was renamed the Treaty on the Functioning of the European Union (TFEU).

These changes had various consequences for many ongoing procedures. First of all, the articles of the TEU and of the old EC Treaty that constitute the legal basis of all the proposals founded on those Treaties were renumbered in accordance with the table of equivalences mentioned in Article 5 of the Lisbon Treaty.

In addition, some proposals underwent a change to their legal basis going beyond a mere change to their numbering, and this resulted in changes to the type of procedure .

The Lisbon Treaty also introduced new concepts of decision-making procedure . The old "codecision procedure" was extended to new areas and renamed the "ordinary legislative procedure". A new "consent procedure" replaced the old "assent procedure". New interinstitutional procedures were also set up for the adoption of certain non-legislative acts, for example the conclusion of some international agreements.

The ongoing proposals concerned by these changes were formally modified by the Commission in a Communication published on 2 December 2009 (COM(2009)0665).

In the case of the proposal for a Council Regulation on the Community patent, the entry into force of the Lisbon Treaty had the following impacts :

· the old legal basis – Article 308 EC – became Article 118 of the TFEU. Please note that the numbering of the old legal basis corresponds to the consolidated version of the Treaty that was applicable immediately before the entry into force of the Lisbon Treaty, and may differ from the references in the original Commission proposal ;

· the proposal, which had previously fallen under the old consultation procedure (CNS), was classified as an ordinary legislative procedure (COD).

The Council took note of a Presidency report on ongoing negotiations aimed at establishing a Community patent and a unified patent litigation system.

With regard to the Community patent, in the first half of 2009 discussions in the Council preparatory bodies concentrated on possible cooperation arrangements between patent offices in Europe, based on enhanced partnerships, and on the economic benefits of a Community patent, on the basis of an expert study highlighting the potential of a future Community patent to foster innovation, in particular by SMEs and universities.

As regards the unified patent litigation system, discussions focused on a draft Agreement and the draft statute of the future court. EU delegations made progress in understanding how the envisaged court system would work. Important areas addressed and further developed include: the composition of the panels of judges, the implementation and operation of the envisaged Agreement, the role of the European Court of Justice (ECJ) in the interpretation of Community law and transitional arrangements. The analysis of economic aspects was carried out on the basis of an expert study highlighting the cost-saving benefits to business of a unified patent system.

In this regard, the Council agreed in principle to request the ECJ for an opinion on whether the envisaged Agreement, to be concluded between the Community, its Member states and other contracting parties to the European Patent Convention, is compatible with the EC Treaty.

Following the conclusions of the Council of December 2006 and of the 2007 Spring European Council, the Commission presented a communication entitled "Enhancing the patent system in Europe" ( 8302/07 ) in April 2007. Progress reports were presented to the Council in November 2007 ( 15162/07 ), May 2008 ( 9473/08 ) and December 2008 ( 16006/08 ).

2945

The Council did not reach agreement by unanimity, as required, on the Presidency's compromise proposal for a Council Regulation on the Community patent. Germany, France, Spain and Portugal

voted against and Italy abstained. Noting that all conceivable compromise solutions for the only outstanding issue, which concerns the translation of patent claims, had been tried, the Presidency

stated its intention to refer this matter to the President of the European Council.

2583

T5-0163/2002
OJ C 127 29.05.2003, p. 0162-0519 E

T5-0163/2002

Debate in Parliament

2412

A5-0059/2002

A5-0059/2002

2403

2389

2371

2351

CES0411/2001
OJ C 155 29.05.2001, p. 0080

2336

2289

EUR-Lex
OJ C 337 28.11.2000, p. 0278 E
COM(2000)0412

EUR-Lex
COM(2000)0412