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One step ahead and one step backward for the EU patent

The following is a contribution from Camilla Rendal Nielsen of Zacco Denmark A/S

1.   The EU Competiveness Council have authorised “enhanced cooperation” in the area of unitary patent protection, and.

2.   The EU court now states that the proposed Patents Court is not compatible with the provisions of the EU Treaty.

The European Competiveness Council have given their final consent to create a unitary patent system under the so-called enhanced co-operation scheme. As we announced last month, a number of European countries have moved towards a unified patent under the EPO, without Spain and Italy, who were blocking the proposed language regime (English, French and German). The current presidency under Hungarian leadership is eager to move the process forward and to begin negotiations to get all member states involved. The proposed unitary patent or EU patent would be granted by the European Patent Office and be valid in all participating states without the need for further translation or registration in each country, thus reducing the costs of patenting in Europe dramatically.

The Council gave their consent, well aware that the European Court of Justice had just handed down an opinion stating that a European and Community Patent Court (the Patents Court) is not compatible with the provisions of the EU Treaty. (Press release available at the end of this post). The presidency and numerous legal experts maintain that the creation of a unitary patent and the creation of the Patents Court are two different issues, and we may see a unitary patent system in place well before the Patents Court is functional.

Part of the Court’s reasoning relates to the Court of Justice not retaining full control over the Patents Court and only being able to provide preliminary rulings to the Patents Court. Another part relates to the conferring of powers from the member states to the Patents Court.

It is not all bleak though. The court also holds that an international agreement providing for a Patents Court with a duty to interpret, inter alias, provisions of European law is not, as such, incompatible with European Union Law, and thus still holds open the door for a Patents Court.

The imminent question is how to draft the legislative framework for the Patents Court so that it takes into account all the aspects of the opinion of the European Court. It also remains to be seen how eager Industry will be to use a new unitary patent, absent a unified litigation system.

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