Kokott gives four reasons for this incompatibility, but the major spanner in the works is the view that the proposal to operate in English, French and German only, is contrary to the rights of defendants who do not speak, or work in, these languages.
“The finest brains around have crafted the proposal. For the Advocate General to say it is not legal on four counts is tremendously tricky,” Alan Johnson, a patent lawyer and partner at the law firm Bristows, in London, told Science|Business.
The European Court of Justice is not bound to accept the Advocate General’s opinion. But even if it does not, this is yet another obstacle to be overcome in the process of setting up the European Patents Court, and by extension, the single EU patent. The Advocate General’s opinion will be seized on by countries including Spain, Italy and Poland, which are against the three languages proposal.
And of course, the European Court of Justice may agree with Kokott. “If so, the future of the dossier must be truly bleak because the alternative to the present proposal would have to be radically different,” believes Johnson. Even if the politicians can come up with a new proposal, this would surely take several years, Johnson adds.
The European Court of Justice was asked for its opinion on the compatibility of the proposed unified patent court with EU Treaties in July 2009 by the European Council, after members of the Council expressed a number of legal concerns. However, the request also stated the majority of members of the Council believe the proposed agreement was a legally acceptable route to setting up the court, thus paving the way for the system to be used to deal with disputes relating to patents granted under a single European scheme.
Meanwhile, in December 2009, the Swedish Presidency hailed a major breakthrough in the creation of a single European Patent and a court of law to uphold it, when ministers meeting at the Competitiveness Council reached unanimous agreement on the way forward.
However, this unanimity was achieved by sidelining the thorny and costly matter of translating patents into different languages, leaving unresolved an issue that once again threatens to be a stumbling block to progress.
Then, on July 1, the Commission published a proposal on translation arrangements, suggesting EU Patents be examined and granted in English, French or German, the official languages of the European Patent Office. Patents would only be required to be translated into other languages in the event of a dispute. In this case the patent owner would pay for the translation.
One day later on July 2 – but unremarked on until it appeared late last week on the patent lawyers’ blog EPLAW – the Advocate General’s opinion was published.
Johnson, who has followed progress in the creation of a single European patent since 1999 said, “Doubtless the Council, and indeed the Commission, had expected the European Court of Justice to decide that the proposed arrangement would be compatible with EU law. As is it the Advocate General has concluded this is not the case.”
The formal opinion of the European Court of Justice is still awaited, and the baton is in the hands of the Belgian government, as current holder of the EU Presidency. It has made the creation of the single European patent one of the major objectives of its term of office.
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