16 April 2013Patents

CJEU rejects attempts to derail Unitary Patent

Europe’s highest court rejected Spain and Italy’s attempts to derail the Unitary Patent (UP) deal on Tuesday.

The Court of Justice of the EU (CJEU) dismissed a challenge to a 2011 decision that allowed the EU’s 25 remaining states to use a so-called enhanced cooperation procedure to negotiate the UP deal without Spain and Italy.

Before that decision, issued by the European Council, Spain and Italy had refused to participate in UP negotiations, complaining in particular that UP applications would not be translated into their languages.

The UP’s official languages – English, French and German – are part of the package approved by the European Council and Parliament in December last year. In the same month, Advocate General Bot opined that Spain and Italy’s challenge should be rejected.

Today, the CJEU laid out Spain and Italy’s arguments, including that the Council lacked the ability to establish the cooperation procedure; that there was a “misuse of powers” when their language objections were ignored; and that the cooperation procedure should have been a “last resort”.

Additionally, it was argued that four articles of two EU treaties had been infringed, because a UP system covering only part of the EU reduced European integration. Fifth, they said, the UP deal showed a “disregard for the judicial system” of the EU.

In a 96-paragraph ruling, the CJEU rejected all five arguments, including each separate claim against the treaty articles. In particular, the court found, the enhanced cooperation procedure was valid, as the Council believed that a UP deal was unlikely to be signed within a “reasonable period” of time (from 2011).

“This is another step to putting the UP deal in place,” said Dr Ulrich Blumenröder, a lawyer at Grünecker in Munich. “If the CJEU had granted Italy and Spain’s wishes, the entire UP would have come to an end. But, the decision is not surprising, as the AG has already suggested that the CJEU dismiss the suit.”

Alan Johnson, partner at law firm Bristows, said an “important hurdle” has been overcome and that today’s decision will encourage member states to ratify the Unified Patent Court (UPC), which is the UP’s associated court.

Johnson said the ruling may cause Italy, which has signed the UPC agreement but not the UP deal, to review its position and possibly join the latter system.

But Blumenröder said he doesn’t think Italy will join the UP, mainly because it strongly opposed the language requirements of the UP deal.

Despite today’s ruling, Johnson said “substantial hurdles” remain – primarily a separate Spanish challenge to the legality of the UP and the language regulations.

“This action was brought in late March 2013, and until a decision in that action is handed down, an element of uncertainty undoubtedly remains.  The decision is likely to be some time in the first part of early 2015,” Johnson said.

The UPC is expected to be ready between July 2014 and January 2015, but could be delayed by the CJEU ruling on Spain’s legal challenge.

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More on this story

Patents
11 December 2012   The European Council and European Parliament have both approved the latest proposal for a Unitary Patent (UP) in Europe, while Advocate General Bot rejected Spain and Italy’s attempt to derail the project.
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24 January 2013   British Prime Minister David Cameron has given a speech on the UK’s relationship with the European Union, which could have grave implications for the future of the proposed Unitary Patent and its associated court.