European and Community Patents Court is not compatible with European Treaties

Back to the drawing board

In February, we reported on progress made at the European level in developing a unified European Patent having effect in all member states (the 'Community Patent') and also a European and Community Patents Court (the 'Patents Court') in which to bring patent infringement proceedings (see our topical issue, The EU Patent and the European and EU Patents Court - March 2011 could be a critical month).

In relation to the Patents Court, the European Council sought the opinion of the European Court of Justice (CJEU) on whether the proposed Patents Court would be compatible with European Community treaties. The Advocates General provided their opinion in June 2010 and concluded that the Patents Court, at least in the form proposed, would not be compatible with European Community treaties.

The CJEU, in a decision handed down today, follows the Advocates General Opinion. In particular, criticism was made of the fact that although the proposed Patents Court will have a mechanism to seek a preliminary ruling from the CJEU, it would operate outside the institutional and judicial framework of the European Union. In effect, the CJEU would have no way to require the Patents Court to apply and enforce EU law.

We also note that the CJEU's decision makes no reference to two other points raised in the Advocates General Opinion, namely the proposed trilingual system and its potential impact on the rights of defence and the absence of any mechanism to challenge the grant, or otherwise, of a Community Patent by the EPO.

This decision means that those involved in drafting the Patents Court proposals, (the Commission, senior judges from the member states and some of Europe's leading intellectual practitioners) will have to re-think their approach and go back to the drawing board. It is clear that the CJEU will require ultimate control over any court deciding on EU law. Meanwhile, the Competiveness Council of the European Union will vote on authorising the use of the enhanced cooperation procedure for the Community Patent later this week, on Thursday, 10 March.

Lawyers Saufung Ma, Matthew Royle