European Patent Court wouldn’t be legal

The plan to establish a European Patent Court with jurisdiction over all patent litigation has been knocked back yet again, with the Court of Justice of the European Union (CJEU) saying the current proposal would not be legal.

This presents yet another obstacle to the long-running attempts to create a single European Patent, which require a recognised and unified European Court to handle litigation.

The setback came ahead of a meeting today (10 March) of the EU Competitiveness Council, where the plan to use “enhanced cooperation” rules that will allow the single European Patent to go ahead without the agreement of Spain and Italy, is due to be approved.

Both the European Commission and the Hungarian EU Presidency tried to downplay the significance of the Court of Justice’s view, declaring it will be business as usual at the today’s meeting. The Hungarian Presidency said it “welcomed” the Court’s opinion, adding, “work on enhanced cooperation [is] unaffected.”

The Hungarian Minister of State Zoltán Cséfalvay, who is chair of the Competitiveness Council said, “Work will continue on the basis of the forthcoming proposals by the Commission, to finally establish the long-awaited, legally secure and cost-efficient patent system.”

Identifying appropriate solutions

At the same time, Cséfalvay added, “The opinion of the CJEU enables us to resume work related to the creation of a unified patent litigation system.”

Similarly, in its statement, the European Commission welcomed the opinion of the CJEU saying, “Now the opinion is available, the Commission will analyse it very carefully with a view to identifying appropriate solutions.” However, the opinion will have no impact on the Competitiveness Council today in authorising the use of enhanced cooperation to move the Single Patent forward, the Commission said. “The creation of unitary patent protection is legally distinct from the creation of the European Patent Court.”

The Commission may be secretly relieved that in its opinion the CJEU raised only one - albeit significant – objection, since in an interim opinion published in July 2010 the Advocate General of the European Court of Justice, Juliane Kokott, raised four objections. This included the view that the proposal for the Patent Court 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 European Council asked the CJEU to give its opinion on the legality of the proposal to set up a European Patent Court with exclusive jurisdiction over any proceedings relating to patents granted under a Single European Patent system, in July 2009. On Tuesday (8 March) the Court delivered its verdict saying, “The envisaged agreement creating a unified patent litigation system is not compatible with [EU law].”

No obvious easy fix

While the Competitiveness Council may today send the single European Patent on the next stage of the journey it began in 2000, the system will be worthless without a court to reduce the cost and remove the complexity of having parallel litigation in several Member States and to provide legal certainty by avoiding conflicting judgments. The Hungarian Presidency acknowledged this and said it, “Intends to deal with the issue as a matter of priority.”

The London lawyers Bristows said the big question now is whether the CJEU’s objection can be overcome. “What seems certain is that there is no obvious easy fix to the one hurdle the CJEU has put in the way,” the firm said in a comment.

However, Benoît Battistelli, President of the European Patent Office said the concerns voiced by the CJEU provide “important clarification” for the further development of the Patent Court. “I am confident that appropriate solutions can be found in order to establish a court system which is in conformity with the EU Treaties and which serves the needs and expectations of the users,” he said.