1 April 2011Jurisdiction reportsMichiel Rijsdijk

Court thwarts community patent court

After years of discussion, the Council of the European Union asked the European Court of Justice (ECJ) in Luxembourg on July 6, 2009 to give an opinion on its draft agreement regarding a court for the European and Community patent. The ECJ had to decide whether this common system for settling patent disputes is compatible with the provisions of the EC Treaty.

On March 3, 2011, the European court gave its negative opinion. According to the draft of the agreement between the European Union, EU member states and third countries, a central court would be introduced in Europe, which would have exclusive jurisdiction for disputes regarding European patents as well as the proposed Community patents.

“According to the draft of the agreement between the European Union, EU member states and third countries, a central court would be introduced in Europe, which would have exclusive jurisdiction for disputes regarding European patents as well as the proposed Community patents.”

The court set out that European law is characterised by a judicial system in which the national and European courts closely collaborate in the interpretation of the European legislation. According to the draft agreement, the European Patent Court is not only charged with the interpretation of this new treaty but also with EU legislation on intellectual property rights. The draft agreement provides for the European Patent Court alone to be able to request preliminary rulings on all aspects of EU and Community patent law from the European Court of Justice.

According to the European Court’s opinion, this provision is too far-reaching a limitation of the national courts’ ability to pose questions to the Court of Justice. Therefore, the Luxembourg judges consider the introduction of such a court incompatible with European law.

The court’s view is defensible, but it is regrettable that it did not consider the characteristics of patent law sufficiently. Both the Netherlands and other EU member states have introduced separate patent chambers, centralising patent case law, precisely because patent law is so specialised. This concentration of knowledge gives added value to the idea of a European Patent Court.

The fact that the draft agreement would prevent the national courts requesting a preliminary ruling from the Court of Justice does not automatically mean that the proposed European Patent Court system is incompatible with European law. This concentration of specialised knowledge in the field of patent law could prevent the Court of Justice being flooded with questions for preliminary rulings.

In the scenario as proposed in the international agreement, the EJC would only receive the most difficult questions regarding the essence of the harmonisation in the field of patent disputes of the European Union. In view of the duration of procedures before the Court of Justice, this would not be a wrong choice, and would hopefully lead to a more efficient legal system as regards patent disputes.

At this moment, it is unclear what the consequences of this opinion are for the Community patent and the proposed patent court. Hopefully, the prospect of a Community patent will not disappear in Brussels bureaucracy.

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

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