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19 November 2014Patents

Spain’s CJEU unitary patent challenge in doubt

A challenge by Spain over the legality of the proposed unitary patent looks set to be thrown out by Europe’s highest court.

In a decision released yesterday (November 18), the Advocate General (AG) recommended that the Court of Justice of the European Union (CJEU) dismiss the case, paving the way for the unitary patent’s implementation.

Spain had started proceedings before the CJEU seeking to invalidate two provisions surrounding the proposed implementation of the patent and Unified Patent Court (UPC).

It first asked the court to declare regulation 1257/2012 of the Official Journal of the European Union—which discusses “implementing enhanced cooperation in unitary patent protection”—non-existent or annulled.

The regulation centres on the language used for potential disputes. Spain had voiced opposition to Spanish being relegated behind French, English and German.

Despite Spain’s reservations, the participating nations continued with the negotiations, known as “enhanced cooperation”.

It also aimed to annul article 9(1) of the same regulation in its entirety, and part of article 9(2); both articles cover administrative tasks including translations. It also wanted article 18(2), which covers the UPC’s entry into force, annulled in part.

But AG Yves Bot advised the CJEU that Spain's action should be dismissed.

Paul England, senior associate at Taylor Wessing, said the challenge was the “last legal hurdle” to be overcome before the UPC and unitary patent can come into force.

The CJEU will have to clarify the AG’s decision but this is seen as likely.

England added: “AG Bot has expressed his opinion that Spain's objections to the UPC be dismissed, and if the CJEU follows these opinions, as we would expect in this case, then the track ahead for the UPC is a clear one."

Alan Johnson, partner at Bristows, who said the AG’s opinion is followed in about 80% of cases, added: “The UPC promises to be an expert and efficient court, and once the initial gremlins are ironed out, Europe should have a much more cost-effective patent system.”

The CJEU is expected to issue its final judgment in the middle of next year.

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11 December 2014   Malta has become the latest EU member state to ratify the Unified Patent Court agreement.
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5 May 2015   The Court of Justice of the European Union has rejected Spain’s challenges to the legality of the unitary patent and Unified Patent Court.