On 18 November 2014, Advocate General (AG) Yves Bot rejected arguments advanced by Spain on the illegality of the two EU regulations which establish the European Unitary Patent; he defended the
On 18 November 2014, Advocate General (AG) Yves Bot rejected arguments advanced by Spain on the illegality of the two EU regulations which establish the European Unitary Patent; he defended the regulations stating that they provided genuine benefit in terms of uniformity and integration and maintained that the choice of languages (which did not include Spanish) reduced translation costs as well as protecting and promoting the principle of legal certainty.
Background
For over 40 years, the EU has strived to create a single patent right to cover the whole of the EU. After several failed attempts, we may now be close to establishing a European Patent with unitary effect, as well as a unified patent court to adjudicate disputes arising over European Patents. At present, European Patents are governed by the European Patent Convention (EPC) which provides that in each contracting state for which a European Patent is granted, it will have the same effect as if it were granted nationally.
The new framework is to be brought about through what has become known as the "Unitary Patent Package" which comprises a number of implementing regulations. In proceedings C -146/13 and C-147/13, Spain sought to annul two of the key implementing regulations; (i) Regulation No 1257/2012 on the establishment of the unitary effect conferred by a European Patent and (ii) Regulation No 1260/2012 which governs linguistic administration and translation requirements.
The AG Opinion
In his Opinion, released on 18 November 2014 (which can be viewed here but is not yet available in English) AG Yves Bot rejected Spain's illegality arguments. He stressed that Regulation No 1257/2012 only conferred on European Patents the requisite unitary effect, leaving the existing EPC regime otherwise unaltered. The AG robustly defended the regulation on the basis that the protection brought "real benefit in terms of uniformity and integration".
As regards Regulation No. 1260/2012, the AG also addressed Spain's argument that the regulation infringed the principle of non-discrimination as certain persons (including native Spanish speakers) would be discriminated against if their mother tongue was not one of the languages prescribed by the regulation, namely English, French or German. The AG acknowledged that non-English, French or German speakers would inevitably be put at a disadvantage and therefore in some cases be treated differently. However, the AG was quick to justify the regulation as seeking a "legitimate objective" that was both "appropriate and proportionate to the guarantees and aspects which attenuate its discriminatory effect". He highlighted how the regulation would significantly reduce translation costs and would ensure a certain degree of stability for businesses and professionals operating in the patents sector that were accustomed to, and comfortable with, working in these languages. The AG distinguished the unitary patent from other intellectual property rights that have unitary effect such as the community trade mark on the basis that patent translations are in virtually all cases, more technical, lengthy and generally complex to translate. He also considered that if all translations relating to the unitary patent were authentic then there would be a significant risk of discrepancies occurring between the different language versions, giving rise to unacceptable levels of legal uncertainty.
Comment
In the wake of this Opinion, what remains to be seen is what the CJEU will make of these challenges by Spain. In approximately 80% of cases, the CJEU follows the AG's Opinion. Given the force of the AG Opinion, the political will in EU Member States for the Unitary Patent Package to be established and that, ultimately, this is likely to rise or fall as a result of any CJEU decision, it seems likely that this case will fall comfortably within the estimated 80%.
If the CJEU does follow AG Bot's Opinion and dismisses Spain's illegality claims, then the long-awaited single European patent right and European patent court will be one step closer to implementation.
Background
For over 40 years, the EU has strived to create a single patent right to cover the whole of the EU. After several failed attempts, we may now be close to establishing a European Patent with unitary effect, as well as a unified patent court to adjudicate disputes arising over European Patents. At present, European Patents are governed by the European Patent Convention (EPC) which provides that in each contracting state for which a European Patent is granted, it will have the same effect as if it were granted nationally.
The new framework is to be brought about through what has become known as the "Unitary Patent Package" which comprises a number of implementing regulations. In proceedings C -146/13 and C-147/13, Spain sought to annul two of the key implementing regulations; (i) Regulation No 1257/2012 on the establishment of the unitary effect conferred by a European Patent and (ii) Regulation No 1260/2012 which governs linguistic administration and translation requirements.
The AG Opinion
In his Opinion, released on 18 November 2014 (which can be viewed here but is not yet available in English) AG Yves Bot rejected Spain's illegality arguments. He stressed that Regulation No 1257/2012 only conferred on European Patents the requisite unitary effect, leaving the existing EPC regime otherwise unaltered. The AG robustly defended the regulation on the basis that the protection brought "real benefit in terms of uniformity and integration".
As regards Regulation No. 1260/2012, the AG also addressed Spain's argument that the regulation infringed the principle of non-discrimination as certain persons (including native Spanish speakers) would be discriminated against if their mother tongue was not one of the languages prescribed by the regulation, namely English, French or German. The AG acknowledged that non-English, French or German speakers would inevitably be put at a disadvantage and therefore in some cases be treated differently. However, the AG was quick to justify the regulation as seeking a "legitimate objective" that was both "appropriate and proportionate to the guarantees and aspects which attenuate its discriminatory effect". He highlighted how the regulation would significantly reduce translation costs and would ensure a certain degree of stability for businesses and professionals operating in the patents sector that were accustomed to, and comfortable with, working in these languages. The AG distinguished the unitary patent from other intellectual property rights that have unitary effect such as the community trade mark on the basis that patent translations are in virtually all cases, more technical, lengthy and generally complex to translate. He also considered that if all translations relating to the unitary patent were authentic then there would be a significant risk of discrepancies occurring between the different language versions, giving rise to unacceptable levels of legal uncertainty.
Comment
In the wake of this Opinion, what remains to be seen is what the CJEU will make of these challenges by Spain. In approximately 80% of cases, the CJEU follows the AG's Opinion. Given the force of the AG Opinion, the political will in EU Member States for the Unitary Patent Package to be established and that, ultimately, this is likely to rise or fall as a result of any CJEU decision, it seems likely that this case will fall comfortably within the estimated 80%.
If the CJEU does follow AG Bot's Opinion and dismisses Spain's illegality claims, then the long-awaited single European patent right and European patent court will be one step closer to implementation.