In the battle of three capitals for the seat of the central division that will head up the court system for the future EU unitary patent, Munich seems to be out of the running, Paris appears to be the favourite and London could win a few laurels. This is what emerged from diplomatic discussions of the past few days ahead of the EU summit, on 28-29 June, which is expected to work out a solution to bring 30 years of delaying tactics to an end.

Given the impossibility over the last few months of working out a compromise on this touchy issue, negotiations have been stepped up in Council. “Finding a solution is a crucial economic necessity even at the price of dividing up the central division’s different activities among several capitals,” Europoliticswas told by Thierry Sueur, BusinessEurope’s representative on this question. European diplomats seem headed to that solution, with the division’s seat going to Paris and support functions being based in London. With this typically European compromise, negotiators could break the impasse and present a positive advance in support of growth to the EU summit. European Council President Herman Van Rompuy also attaches importance to this political issue.

European enterprises have been desperately seeking a unitary patent to do away with the complexity and cost of the existing European patent, regulated by an intergovernmental agreement by 38 states, including the EU27, which also created the Munich-based European Patent Office (EPO). Patent applicants have to spend ten to 15 times what an equivalent patent costs in the United States, chiefly as a result of the cost of translations required in each European state where protection is sought. Added to that is the lack of legal certainty stemming from the fact that disputes are handled by national courts with the result that the same conflict can be treated differently depending on national laws.

The package under discussion aims to put in place a unitary patent for the EU, issued under a single filing procedure and with effects in all the member states participating in the system. It is made up of three elements: a draft regulation setting up the unitary patent, another establishing translation rules and a draft intergovernmental agreement setting up the patent court system. Since Madrid and Rome refused to accept the language rules based on the EPO’s three working languages – English, French and German – the project is now moving forward under enhanced cooperation by the other 25 states.

THREE CANDIDATES

The question of the central division heading up the court system also sparked opposition. The system will be made up of a court of first instance organised into a central division plus local (national) and regional divisions (grouping several local divisions), as well as a court of appeal and a mediation and arbitration centre. The location of the central court is a sensitive issue because not only does it have to meet requirements in terms of functional infrastructures but it must also reflect a balanced concept of the application of intellectual property law. The candidates - London, Munich and Paris – are all equal on the first criterion; for the second, London represents a fairly strict approach to patent law.

By contrast, Munich is perceived as much too liberal in its approach and tending to apply very specific law separating disputes on patent validity from those on infringements. Furthermore, the presence of the seat of the EPO, charged with issuing patents, works against it as some advocate a separation from the judicial authority.

Paris seems to symbolise a middle road between these two opposing concepts and was proposed, in December 2011, by the Polish EU Presidency. But the stalemate has gone on for six months despite pressure by the informal European Council of 30 January, which set the deadline of the end of June for an agreement. This approaching deadline has therefore brought about a shift in positions.