During a public session held at the Competitiveness (Internal Market, Industry, Research and Space) Council, ministers exchanged views on the way forward for the future establishment of a single EU patent system and, in particular, the possibility to starting up an enhanced cooperation between several member states. Italian and Spanish delegations strongly opposed the idea of taking this path.

Following ministerial discussions about language regime for an EU patent held on 11 October and 10 and 25 November 2010, the Belgian Presidency concluded that it was not possible to reach the required unanimity on a language regime for creating a EU patent system within a reasonable period of time. For that reason a number of member states expressed their support to the possibility of moving ahead on the basis of an enhanced cooperation.

For a large majority of delegations an enhanced cooperation, as provided for in the EU treaty, is the only option for moving ahead on the creation of an unified EU patent system. Following this approach, they asked the Commission to present a formal proposal to initiate enhanced cooperation, which is due to be submitted by the Commission on 14 December.

Italian and Spanish delegations strongly opposed the idea of initiating an enhanced cooperation on the basis that the requirements for engaging in that process are not currently met. The Hungarian delegation, which will be holding EU Presidency as from January 2011, expressed its commitment to take the work forward with a view to achieving an agreement on this issue as soon as possible.

Enhanced cooperation procedure in the area of unitary patent protection

• It is to be used only as a last resort after verifying the impossibility of reaching unanimity within a reasonable period of time.
• An application submitted to the Commission by member states wishing to pursue among themselves an initiative blocked at the level of the Union.
• 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. There must be at least nine countries wishing to participate.
• Once the cooperation has been authorised the Commission submits a legislative proposal. 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.