Shortly before today’s vote in the European Parliament on the Unitary EU Patent , Advocate General Bot recommended that the Court of Justice of the European Union (“CJEU”) dismiss the actions brought by Spain and Italy objecting to the EU Patent package.

The Spanish and Italians did not support the compromise that the rest of Europe reached on the language regime for the Unitary EU Patent, which would allow Unitary EU Patents to be filed in English, French or German and granted without the need for translations into other European languages.

In order to progress the Unitary EU Patent despite the Spanish and Italian opposition and break the deadlock which had lasted for over 30 years, on March 10, 2011 the European Council decided to deal with the Unitary EU Patent package via the “enhanced cooperation procedure”.  This procedure allows groups of member states to move ahead together, without the involvement of all 27 EU member states.  It is intended as a last resort, and has only been used once before in European legislative history.

In Joined Cases C 274/11 and C 295/11 Kingdom of Spain (C 274/11) and Italian Republic (C 295/11) v Council of the European Union Italy and Spain mounted a legal challenge to the European Council’s Decision to proceed without them, using the enhanced cooperation procedure.  Earlier today, Attorney General Bot announced his support for the Council’s March 10, 2011 Decision, and urged the CJEU to uphold the Council’s Decision and therefore the legal basis for the EU Patent Package.

Although the CJEU is not obliged to follow the Attorney General’s advice, it frequently does reach the same conclusion, and seems likely to do so in this instance.  It now seems increasingly likely that the Unitary EU Patent will become a reality after decades of negotiation, and if it does, Spain and Italy are free to opt back in to the process.