The EU Patent and the European and EU Patents Court - March 2011 could be a critical month
At the end of 2010 we posed the question - are we any closer to a unified patent system for Europe? Well, last week, using a fast track procedure, the Legal Affairs Committee of the European Parliament voted in favour of using the enhanced cooperation procedure to set up an EU Patent. The proposal to use the enhanced co-operation procedure was signed in December by eleven EU member states and informally supported by another twelve. The proposal would leave the remaining four, Italy, Spain, Cyprus and the Czech Republic out of the new patenting regime and all four countries remain openly opposed to using the proposed procedure. The European Parliament is now expected to vote on the proposal at its next plenary session in mid February and the Commission may well formally launch the procedure at the Competiveness Council meeting on 10 March.
Why the rush? The European Parliament are being encouraged by many industry groups to postpone its vote until after the crucial decision of the Court of Justice of the European Union (CJEU) on the compatibility of the proposed unified patent litigation system and the unified patents court with the EU Treaties. The decision is expected on the 8 March.
The Advocates General issued a highly critical opinion in July 2010
Their concerns centred on what the Advocates General considered to be insufficient means in the proposal for recognising and ensuring the primacy of European Union law, a linguistic system (based upon English, French and German) which may affect the rights of defence established under EU law, and insufficient means of ensuring the correct application of EU law in relation to European Union Patents by the EPO - for example, any administrative review of a decision of the EPO on the granting of / opposition to a European Union Patent would be carried out by the EPO itself, with no recourse to the Court of Justice.
The opinion of the Advocates General is not binding on the CJEU but if the CJEU follow the AGs’ opinion it could well mean the end for the unified patent system as currently proposed.
Click for a summary of the state of play with respect to the two ongoing initiatives, and an update on developments so far in 2011:
- The European Union Patent (EU Patent) (formerly the Community Patent) – a unitary patent right for the EU Member States; and
- The European and EU Patents Court (EEUPC) - a one-stop shop for litigating European Patents and (should they come to exist) European Union Patents.
Lawyers Helen Cline
