The European patent court: more work required

The draft agreement proposed, in particular, the creation of a supranational jurisdiction that would have to decide, for those two types of patents, on infringement or non-infringement actions, cancellation actions and others, thereby making it unnecessary to lodge actions before national jurisdictions in which those titles are protected.

This new jurisdiction would not fall within the competence of the community legal system due to the fact that it would also hear actions related to European patents and thus would concern countries that are not member states of the European Union, such as Turkey.

The CJEU decision, in substance, does not really diverge from the position adopted by the Advocates General on July 2, 2010 and concludes that this draft agreement is not compatible with the provisions of the EU Treaty and the Treaty on the Functioning of the European Union (TFEU).

The CJEU held that the jurisdiction envisaged for the court would be in contradiction of the provisions of Article 267 of the TFEU. These provisions allow national courts to apply for a preliminary ruling to the CJEU when the interpretation of treaties or the validity of rights applicable in the European Union is at issue.

The CJEU decision insists on this direct co-operation with the national courts, which allows them to participate in the good implementation and uniform interpretation of Community law as well as in the protection of the rights granted to individuals.

However, the draft agreement gives the proposed supranational jurisdiction exclusive competence to refer a question to the CJEU for a preliminary ruling, depriving national courts of this competence.

“Alongside the UK and Germany, France is one of the leading countries within the European Union in terms of the number of patent litigations. It gives France some claim to host the patent court. But there is still a way to go before a venue for the court is decided.”

The ECJ considers that the draft agreement, by granting exclusive competence to the proposed new court—outside the institutional and jurisdictional framework of the European Union—to hear a significant number of cases lodged by individuals in relation to Community patents as well as in relation to the interpretation and the implementation of EU law, “would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law”.

The court highlights as well that a decision issued by this patents court, in breach of European Union law, “could not be the subject of infringement proceedings nor could it give rise to any financial liability on the part of one or more member states”.

On the other hand, it should be noted that the CJEU does not comment on the linguistic regime proposed for the patents court, whereas the Advocates General found it unacceptable.

In the meantime, in order to allow the Community patent to be set up, the principle of enhanced co-operation, approved by the European Parliament on February 15, 2011, was authorised by the European Union Council on March 10, 2011.

Enhanced co-operation is authorised by the Lisbon Treaty to allow the adoption of European legislative acts by a limited number of member states, as long as its aims cannot be reached within a reasonable time period and that at least nine member states participate. As Spain and Italy refuse to agree on the plan for the Community patent, the recourse to enhanced co-operation will at least allow the project to progress. France wishes to see the Community patent adopted and supranational jurisdiction created.

Alongside the UK and Germany, France is one of the leading countries within the European Union in terms of the number of patent litigations. It gives France some claim to host the patent court. But there is still a way to go before a venue for the court is decided.

For now, the European Commission will present two legislative bills, on the creation of the single Community patent and on the linguistic regime applicable to that patent.

Aurélia Marie is a partner at Cabinet Beau de Loménie. She can be contacted at: amarie@bdl-ip.com