The European patent court: more work required


Aurélia Marie

On March 8, 2011, the CJEU issued its opinion on the proposed agreement to create a unified patent litigation system to apply to European patents established by the EPC and granted by the EPO, as well as to future Community patents.

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).