EU Patent Litigation System - Advocate General gives it the thumbs down!
.jpg)
The eagerly awaited Advocates General of the ECJ’s opinion on the proposed single European patent system and European Patents Court (EEUPC) has recently been published.
In June 2009, the Legal Service of the Council of the European Union had requested the opinion of the ECJ on the compatibility of the proposed unified patent system with the EU Treaties. The Opinion now, in a surprise to many, firmly rejects the legality of the proposed system:
“as it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties”.
The Advocates General highlighted four areas as being particularly incompatible with the EU treaties:
1. the insufficient guarantees of the pre-eminence of EU law;
2. the insufficient remedies for infringement of EU law under the EEUPC system;
3. the linguistic system adversely affecting defendants; and
4. the draft agreement establishing the unified patent litigation system not ensuring effective judicial control nor a means of correct and uniform application of EU law.
The ECJ is due to give its formal decision before the end of the year.
The Advocates General’s opinion is non-binding and therefore it remains to be seen whether the ECJ will concur with the opinion or reach a different conclusion with regards to a unified patent system in Europe. If rejected by the ECJ, it may be a case of back to the drawing board for this very difficult patent law policy initiative.
