Spanish challenge to unitary patent thrown out

07 May 2015 | News
The EU's highest court has dismissed two legal challenges brought by Spain against plans to create a single European patent system for EU countries

Spain’s challenge to the legality of the EU patent and the Unified Patent Court (UPC) has been defeated by Europe’s highest court.

In a judgment issued yesterday, the Court of Justice of the European Union found that both are consistent with EU law and can proceed.

Spain has declined to participate in either the single European patent system, called the unitary patent, or the UPC, disagreeing with the rule limiting the languages used in the system to French, German or English. Spain filed a couple of legal challenges in 2013 to halt the legislation, claiming the new system will only work if all member states sign off on the UPC.

The challenge on language fails on the grounds that a patent system with a “simple translation regime” would be “as a whole easier, less costly and legally more secure,” the court said. As is currently the case, European patents need to be translated after grant into the language of each EU country in which businesses wish the patent to apply, which can lead to huge costs.

Spain also looked to the court to annul the regulation which governs the creation of the unitary patent package, arguing that it lacked legal basis. This charge was also rejected.

The new patent system will make it possible for businesses to obtain near-EU-wide patent protection for their inventions through a single patent application to the European Patent Office (EPO).

EPO President Benoît Battistelli said, “With its rulings the court has created the necessary legal certainty for participating EU member states as well as for users of the European patent system, and, after more than 40 years, paves the way towards truly uniform patent protection in Europe.”

Along with Spain, Italy is also choosing to opt out of the unitary patent.

A defeat foretold

The dismissal of Spain’s legal challenge was considered significant if not surprising. A non-binding opinion on the case made by Advocate General Yves Bot in December was consider weighty. At the time, Bot said, "The choice of languages acknowledges the linguistic realities of the patent sector: most scientific papers are published in German, English or French; and those languages are spoken in the member states from which most of the patent applications in the EU originate.”

Patent watchers said that Bot would not have  said this if he did not believe the court was behind him. 

Waiting on fees, ratification

After many delays, the new patent regime was due to come into force last year. However, before the UPC can enter into force it must be ratified by 13 EU member states. France, Austria, Belgium, Denmark, Malta, Sweden and Luxembourg have been through the ratification process, but Germany and the UK have not.

In addition, the fees relating to the single patent have yet to be finalised. The EPO said in December that an announcement will be made in the summer but there is some doubt at the top of the European Commission whether this deadline can be met. In a press release issued on Tuesday (5 May), the EPO promised a decision “in the coming months.”

The headquarters of the UPC will be based in Paris, with Munich will dealing with applications relating to mechanical engineering, and the UK responsible for patents concerned with pharmaceuticals and chemistry. The court will give a single judgment that would apply across all European countries signed up to the system.

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