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CJEU dismisses Spain's objection to the EU Unitary Patent system

05/05/2015
Today the CJEU has rejected Spain's objections to the European Unitary Patent system. This effectively removes the last serious obstacle to the proposals so the system is likely to be implemented when Today the CJEU has rejected Spain's objections to the European Unitary Patent system. This effectively removes the last serious obstacle to the proposals so the system is likely to be implemented when the UPC Agreement has been ratified by the required number of states (13, including France, Germany and the UK). There are currently seven signatories (Austria, Belgium, Denmark, France, Malta, Sweden and Luxembourg) and Portugal has taken steps towards ratification. Launch of the UPC and Unitary Patent package is realistically now expected at the beginning of 2017.

Background

For over 40 years, the EU has strived to create a single patent right to cover the whole of the EU. We may now be close to establishing a European Patent with unitary effect, as well as a unified patent court ("UPC") 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.

In November 2014, the Advocate General rejected Spain's illegality arguments (see our previous post here).

CJEU decision

The CJEU has now confirmed the AG's opinion in cases C-146/13 and C-147/13 and issued a Press Release.

Spain had argued that Regulation 1257/2012 provides for protection based on the European patent but the administrative procedure preceding the grant of such a patent is illegal because it is not subject to judicial review to ensure the correct and uniform application of EU law. The CJEU rejected this argument pointing out that Regulation 1257/2012 is in no way intended to delimit the conditions for granting European patents, which are governed by the European Patent Convention ("EPC"), and does not incorporate the procedure for granting European patents laid down by the EPC into EU law. Spain had also contended that Article 118 of the Treaty on the Functioning of the EU (concerning the uniform protection of IP rights through the EU) is not an adequate legal basis for Regulation 1257/2012. In that regard, the CJEU pointed out that unitary patent protection is apt to prevent divergences in terms of patent protection in the participating Member States, and accordingly, provides uniform protection of IP rights in the territory of those States.

On translation, Spain had argued that the proposed language arrangement was prejudicial to individuals whose language is not one of the official languages of the EPO (such as native Spanish speakers). Whilst the CJEU acknowledged the differentiation between the official languages of the EU, it emphasised that Regulation 1260/2012 has a legitimate objective of creating a uniform and simple translation regime to facilitate access to patent protection, particularly for small and medium-sized enterprises. The CJEU emphasized that the proposed language arrangements made access to the patent system easier, less costly and legally more secure. In the CJEU's opinion, Regulation 1260/2012 is also proportionate as it maintains the necessary balance between the interests of the applicants and the interests of other economic operators.

 

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