Eubelius Spotlights previously reported on the decision of 25 EU Member States to establish a European patent with unitary effect in their territories ("Unitary Patent") and at the same time to create a Unified Patent Court, a joint patent court with jurisdiction over 25 Member States (Eubelius Spotlights December 2014). On 5 May 2015, the Court of Justice rejected two actions for annulment of the relevant Regulations.
In 2012, 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. The Regulations will only enter into force once the Agreement on a Unified Patent Court is ratified by 13 Member States (including France, Germany and the UK). Spain and Italy refused to participate in the unitary patent system.
In 2013, Spain launched two actions (C-146/13 and C-147/13) before the Court of Justice of the European Union seeking to annul the Unitary Patent Regulation and the Translation Regulation, asserting that they were contrary to Union law.
Essentially, Spain's pleas boiled down to the following objections:
- the Unitary Patent violates Union law since the granting phase of the Unitary Patent (governed by the European Patent Convention) is not open to EU judicial review;
- the Unitary Patent would not be a real uniform EU title since a large number of provisions regarding substantive patent law (e.g. provisions regarding direct and indirect infringement and validity) are either part of the UPC Agreement or of the European Patent Convention, both of which are non-EU treaties;
- the translation arrangements for the Unitary Patent are discriminatory because the patent will only be granted in French, German or English as official languages.
In his opinion of 18 November 2014, Advocate-General Bot had already proposed to dismiss Spain's actions (see Eubelius Spotlights December 2014). On 5 May 2015 the Court of Justice confirmed the opinion of the Advocate-General and dismissed Spain's actions.
The Court accepted the accessory nature of the Unitary Patent, which implies that only the post-grant phase is harmonised in the EU Regulations. The Court of Justice ruled that Union law (specifically Article 118 of the Treaty on the Functioning of the European Union) does not necessarily require complete and exhaustive harmonisation of all aspects of a uniform intellectual property right. With respect to languages, the Court ruled that the Regulations do not violate the principle of equality and non-discrimination since they pursue a legitimate objective (to facilitate access to patent protection), and are proportionate, given the reimbursement of translation costs for applications as well as the translation arrangements in case of dispute and during the transitional period. According to the Court, there is no general principle of Union law that all documents which might affect the interests of an EU citizen should be drawn up in his language in all circumstances.
Although the participating Member States have been fully preparing the entry into force of the "unitary patent package", the actions by Spain remained hanging over the project like a sword of Damocles. The Court of Justice has now finally removed this sword, clearing the path for the coming into existence of a uniform EU patent title and a Unified Patent Court. As a consequence of the positive judgment of the Court of Justice, Italy is currently considering also adopting the Unitary Patent Regulations.
Belgium ratified the Unified Patent Court Agreement in May 2014. 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. These Member States can no longer hide behind the sword of Damocles that was provided by Spain as a reason for refusing or prolonging ratification. If the preparations can be completed as planned, and provided that there is ratification by the other participating Member States, the unitary patent package could enter into force in 2016–2017.