CJEU Rules that Unified Patent Litigation System is Incompatible with EU Treaties
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You might recall that last April we wrote about the long awaited opinion from the Court of Justice of the European Union (CJEU) on the European Council’s draft agreement establishing a new European and Community Patent Court (Patent Court). That opinion was finally issued in March with the CJEC ruling that the draft international agreement put forward by the Council is incompatible with EU Treaties.
The CJEU’s Opinion 1/09 of 8 March 2011 notes that the draft agreement would give exclusive jurisdiction to the proposed Patent Court to hear litigation related to the European patent and the future Community Patent. Such a measure would mean that the powers of Member State courts would be superseded and the proposed Patent Court would become the sole court to interpret and apply European Union law in this field.
Of particular concern to the CJEU was that the proposed Patent Court was outside the institutional and judicial framework of the EU; this international court would have an exclusive jurisdiction under a significant number of actions in relation to Community Patents and also the power to interpret and apply European Union law. This means that Member States would retain only those powers which were not subject to the exclusive jurisdiction of the Patent Court. Member State courts would therefore be deprived of their powers to interpret and apply European Union law and the CJEU would be deprived of its power to reply to questions referred by those courts by way of preliminary ruling. The CJEU concluded that such a proposal would change “the essential character of the powers which the Treaties confer on the institutions of the European Union and on Member States” which are “indispensible for the preservation of the very nature of European Union Law”.
The opinion raises the question whether it will be possible to establish a unified patent litigation system that will satisfy the various stakeholders’ interests and also comply with EU law. For now, it looks like its back to the drawing board for the Council.
