6 June 2017PatentsLorna Brazell

UPC: the role of the CJEU

The role of the Court of Justice of the European Union (CJEU) in the Unified Patent Court (UPC) might seem an arcane concern when jurisprudence on patent matters has been relatively sparse for the CJEU’s first 60 years of operation.

In recent years the court has seen an endless stream of references from the European Union Intellectual Property Office in relation to administrative challenges to decisions to grant or refuse trademarks or designs, and it is currently grappling with the protection of copyright in the digital environment.

But since Europe’s relatively harmonised patent law derives not from the EU but from the separate European Patent Convention, the CJEU’s interventions to date have been limited to the interplay between patent rights and the freedom of movement of goods or competition law.

The question may, however, be crucial to the continuation of the UPC and unitary patent system, once the UK has left the EU in 2019.

The UK government has stipulated that escape from the supremacy of CJEU decisions over those of national courts is a major political objective of the Brexit process.

If the CJEU is seen as a significant component of the UPC system, the UK may prefer to withdraw from it, even if the other participants were prepared to renegotiate the agreement to permit it to remain as a non-EU member state.

A fundamental role?

How extensive is the CJEU’s engagement with the UPC likely to be? This apparently simple question needs to be handled with care.

There are two logically separate questions, which tend (in the heated discussions generated by any Brexit-related issue) to get conflated.

First, does the CJEU have jurisdiction to determine questions of law through the UPC system?

Second, how significant are the questions the CJEU will have to determine? This can also be subdivided: how legally significant, or how likely to occur in daily practice?

At first glance, it appears that the CJEU’s role is a fundamental one.

The UPC Agreement opens with a series of recitals spelling out the importance of EU law and the CJEU’s role in maintaining it.

This presentation of EU law and primacy as central to the Agreement arises from the CJEU’s rejection of a previous form of agreement on the grounds that it was incompatible with EU law because of the absence of any guarantee for that law’s primacy.

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