In a case brought by Spain against two Regulations implementing a new Unitary European Patent, the Advocate General of the Court of Justice expressed the opinion that these Regulations are in line with EU law.
In 2012, 25 EU Member States agreed to establish a European patent with unitary effect ("Unitary Patent") for their territories. The participating Member States approved two EU Regulations to implement the Unitary Patent: the Unitary Patent Regulation (No 1257/2012) and the Translation Regulation (No 1260/2012) which determines the translation requirements for the Unitary Patent. They decided, however, that the Regulations will only apply once the Agreement on a Unified Patent Court enters into force.
The Unified Patent Court Agreement is a non-EU legal instrument (i.e. a treaty) by which 25 contracting Member States decided to set up a joint patent court for their territories. The Unified Patent Court will initially have jurisdiction for 13 EU Member States and eventually (after completion of the ratification process) for 25 Member States. The Unified Patent Court will rule on disputes regarding Unitary Patents and (if the patentee has not opted out from the jurisdiction of the Unified Patent Court) classic European patents. It is meant to overcome the problems that currently arise with a classic European patent, where, in the case of infringement, the patentee has to litigate separately in each Member State where the patent is valid, and a third party wishing to invalidate a patent has to start proceedings in each of those Member States.
Spain is not participating in the Unitary Patent or the Unified Patent Court and has opposed the new system since 2012. In 2013, Spain introduced two proceedings (C-146/13 and C-147/13) before the Court of Justice of the European Union to nullify the Unitary Patent Regulation and the Translation Regulation respectively. Spain's main objections in these cases are as follows:
- The Member States did not create an intellectual property title that provides uniform protection (in application of article 118 of the Treaty on the Functioning of the European Union), since the acts of direct or indirect infringement are not specified in the Regulations themselves, but are included in the Unified Patent Court Agreement and hence in a treaty outside EU legislation and EU legal control;
- The Member States undermine the competence of the EU by providing that the application of the Regulations is dependent on the entry into force of the Unified Patent Court Agreement; and
- The translation arrangements for the Unitary Patent are discriminatory because the patent will be granted in French, German or English with only one additional mandatory translation.
The opinions of the Advocate General of the Court of Justice regarding the two actions by Spain were published on 18 November 2014. The Advocate General proposes that the Court of Justice should dismiss Spain's actions against the Unitary Patent Regulation and the Translation Regulation respectively.
In response to Spain's claims, the Advocate General considers that an intellectual property right providing uniform protection does not necessarily imply that all aspects of the intellectual property right have to be fully harmonised. Therefore, it is possible to refer to a non-EU instrument (in casu the Unified Patent Court Agreement) to define acts of infringement.
The dependence of the application of the Unitary Patent Regulations on the entry into force of the Unified Patent Court Agreement is essential in order to ensure the proper functioning of the Unitary Patent, consistency of case law, and hence legal certainty.
The Advocate General does not find the translation arrangements for the Unitary Patent to be discriminatory and points out that there is no principle of equality of languages. The choice of only three languages pursues the legitimate objective of reducing translation costs and is appropriate and proportionate since it will only apply during a transitional period. After the transitional period, automatic machine translations of the patents in all other languages of the EU will be available besides the official language version.
If the Court of Justice follows the Opinion of the Advocate General, a major barrier to establishing a Unitary Patent and a Unified Patent Court will be removed. The decision of the Court of Justice is expected in the spring of 2015.
The participating Member States are currently preparing for the start of the Unified Patent Court and the Unitary Patent. Important decisions regarding the renewal fees for the Unitary Patent and the adoption of the Rules of Procedure of the Unified Patent Court are expected to be taken in 2015. Meanwhile, eight participating Member States (including Germany and the United Kingdom) still have to ratify the Unified Patent Court Agreement in order to allow the new system to become operational. Belgium, France, Denmark, Sweden and Austria have already ratified the agreement. If the preparations can be completed as planned, and provided that there is ratification by the other participating Member States, the first Unitary Patent could be issued in 2016.