On 11 December 2012, Advocate General Bot gave his Opinion on Joined Cases C- 274/11 and 295/11, proposing that the Court of Justice of the European Union (“ECJ”) dismiss the cases brought by Spain and Italy challenging the other 25 Member States’ use of the “enhanced cooperation” procedure to create an EU wide unitary patent system. While this is certainly a positive development, the ultimate decision as to whether the use of “enhanced cooperation” is compatible with the EU Treaties lies with the ECJ, which is expected to give judgment in the middle of 2013.

On 10 March 2011, the Council of the European Union had authorised by decision the use of enhanced cooperation between 25 of the 27 EU Member States – Spain and Italy having refused to participate – with a view to creating unitary patent protection in the EU. Under Article 20 of the Treaty on European Union, enhanced cooperation can only be used by a subset of Member States as a last resort within the framework of the Union’s non-exclusive competences, when the objectives of that cooperation cannot be achieved by the Union as a whole.

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