EU Patent and unified patent litigation system - Update July 2011
Despite the tortuous route to a unified patent and a unified patent litigation court in Europe, both now appear to be a small step closer.
Draft regulations have been published on the establishment of a unified European patent and its corresponding language regime. The Commission has approved and adopted the use of the enhanced co-operation procedure for bringing into force the proposed regulations, which the EU parliament is currently finalising. However, Italy and Spain have opted out of the enhanced co-operation procedure and both countries have recently lodged a complaint with the CJEU arguing that the proposed official languages (English, French and German) put them at a competitive disadvantage.
On the proposed unified patent litigation court the CJEU, in its Opinion 1/09 of 8 March, held that the court system, as proposed, was not compliant with European Union treaties. The EU Presidency has now presented a non-paper addressing the concerns set out in the opinion and in particular, proposes the exclusion of non-EU member states and provides a mechanism under which the Commission can bring infringement actions against EU Member States for any violations of EU law. The non-paper is clearly intended to maintain the primacy of the CJEU and ensure that any European patent litigation court is accountable to the CJEU.
Lawyers Helen Cline, Saufung Ma, Matthew Royle
