一覧に戻る A new obstacle to EU plans for a European and EU Patent Court (EEUPC)

The Advocates General recently issued a statement of position on the draft international agreement on the establishment of a unified patent litigation system, on which a legal opinion (Case 1/09) of the European Court of Justice (ECJ) was requested by the European Council.

In summary, the Advocates General are of the opinion that in its current state, the draft agreement intended to create a unified system for settlement of disputes regarding patents is not compatible with the European treaties.

In particular, the opinion is based on the following reasons:

• The guarantees contained in the draft agreement in view of ensuring full application and observance of the precedence of Union law by the envisaged European patent court are insufficient (see points 78-93 of the statement of position);

• The available legal remedies are insufficient in the following cases: in case of a violation of Union law by the envisaged European patent court and in case of the patent court's non-observance of its obligation to effect a preliminary reference to the European Court of Justice following art. 48 of the draft agreement (see points 104-115 of the statement of position);

• The linguistic regime before the central division of the envisaged European patent court could violate the rights of defence (see points 121-122 of the statement of position);

• The draft agreement, read in the light of the totality of the measures envisaged concerning patents, does not respond to the need of ensuring effective judicial control and a correct and uniform application of Union law in administrative conflicts regarding the grant of EU patents (see points 68-75 of the statement of position).

The ECJ is expected to issue the requested opinion by the end of 2010. Although not bound by the opinion of the Advocates General, historically, the ECJ has followed their opinion in the majority of cases. Accordingly, it is expected that the ECJ will hold that the draft agreement would not be compatible with European Union law.

Nevertheless, by amending the draft agreement it might be possible to overcome the above mentioned flaws and bring the agreement into line with European Union law. In particular, the highly debated issue of the language regime was not questioned in its totality, but rather only with respect to the procedure before the central division of the European patent court.

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