In a resolution following their annual meeting in Venice from November 14 to 16, the group of 29 judges from 15 countries said: “We regret a certain slowdown in possible further progress and urge all member states of the European Union to give full support to both initiatives.”

But recent discussions between member states have made it increasingly unlikely that pan-EU agreement will be reached.

This prompted the judges to say: “If it will not be possible to win the support of all EU member states for the proposed court-system and the Community patent, both projects should be realised by using the possibilities of an enhanced cooperation foreseen by the EC Treaty.”

Enhanced cooperation allows EU member states to work more closely on certain projects, but only as a last resort.

Managing IP revealed that some member states could press ahead with patent reform, while others opt out, in July this year.

One of the main obstacles to a full agreement remains the Spanish government’s concerns about language.

In a document published earlier this month, the French presidency said that, while some progress had been made on discussions to establish a patent court, “several issues still need to be discussed further in order to reach a consensus”.

These issues include the composition of the judicial panels, language arrangements, jurisdiction on validity, the role of the ECJ, financing of the court and transitional arrangements.

The document also said that a study on the economic aspects of the Community patent is set to be completed by the end of this year: “The Presidency believes that these discussions will enable progress towards a consensus.”

The French presidency will be followed in January by the first (so-called kindergarten) presidency of the Czech Republic, which is thought unlikely to press ahead with patent reform, particularly as economic matters are likely to have a high priority.

Sweden will hold the presidency in the second half of 2009.

In their resolution, the judges also expressed their views on some of the remaining controversial aspects of the patent court – the role of the ECJ, representation and language.

They said that the ECJ “should not be burdened with more than its traditional role of answering preliminary references from the Appeal Court”.

Regarding representation, the judges backed the recognition at least of “attorneys who are fully entitled to represent parties in ordinary civil proceedings” in first-instance courts in the relevant states.

They also said that the local and regional division of the proposed court should have discretion to decide whether “the local language should be used” if requested by one party, or whether another language, such as that of the patent, should be used.

The EU Competitiveness Council will review progress on patent reform at its meeting on December 1 and 2.