1 October 2010Patents

Advocate General: new EU patent system incompatible with EU law

The creation of an EU patent litigation system and a new Community Patent may be delayed by the European Court of Justice (ECJ) after Advocate General Kokott rejected the draft agreement that would form its basis.

Opinion 1/09, a July 2 draft, disagrees with the compatibility of the agreement with EU treaties.

The overall framework of a unified system was agreed by the EU Council in late 2009. That would enable a new pan-European patents court to be set up to hear patent disputes and authorise the European Patent Office to grant a new EU-wide patent (commonly known as the Community Patent).

Kevin Mooney, a partner at London-based Simmons & Simmons, noted several reasons for the negative recommendation. These include concerns that the linguistic system proposed—a trilingual central registry with English, German and French as the official languages—might prejudice the rights of the defence.

According to Mooney, the opinion also states that the draft agreement on a unified patent and litigation system makes insufficient guarantees to ensure full implementation and respect for the rule of EU law.

Alan Johnson, a partner at London-based Bristows, said: “What is particularly dispiriting is the number of issues on which the Advocate General’s opinion is negative.” The ECJ’s role in a unified patent litigation system may be a cause of particular concern for users of the new court system.

Johnson said: “There is a clear suggestion in the opinion that the ECJ should act as an appellate court on points of law. A fundamental change to the agreement by introducing a bigger role for the ECJ, not just ensuring the primacy of EU law, but also to rule on substantive patent law, would be very problematic.”

Due to disagreement among the member states of the EU as to the legality of the draft agreement, the EU Council requested the opinion of the ECJ under Article 300(6) of the EU Treaty. This allows the advice of the ECJ to be sought when the compatibility of draft international agreements with current EU law is under question.

The ECJ is under no obligation to follow the Advocate General’s opinion, but there are fears for the unified patent litigation system and Community Patent if it does. The ECJ is expected to provide its opinion on the agreement before the end of 2010.

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