09 February 2011

ECJ Opinion on European Patent Court System Announced for 08 March 2011

[The Grand Chamber at the European Court of Justice in Luxembourg]
The proposal for a unified patent litigation system in Europe is based on a first preliminary Draft Agreement prepared by the Slovenian Presidency in May 2008 [Doc. 9124/08], which was further elaborated and revised to yield the latest version of the Draft Agreement as proposed by the Czech Presidency on 23 March 2009 [Doc. 7928/09]. Due to requests by various delegations, an opinion by the European Court of Justice (ECJ) was requested on the compatibility of the envisaged Agreement with the EU Treaty [Doc 9076/09].

Now, the judical calender of the European Court of Justice announces the opinion on the "Draft Agreement on the European and Community Patents Court" (case Avis 1/09) to be published on

08 March 2011.

In May 2010, an oral hearing took place (see official report) and showed that there exist doubts whether a number of essential issues of the Draft Agreement are compatible with the EU Treaty and related EU law. Mr Jochen Pagenberg, current President of EPLAW, was present at the Court hearing and concluded in privat notes
What can be expected from the Opinion of the ECJ? A clear affirmative answer in favour of compatibility of the present Agreement is highly unlikely in view of the persistent questions and serious doubts concerning the lack of judicial EU control over the EPO granting procedure. Beyond this the controversial legal basis between the Member States about the court system as a whole, and particularly with respect to the combined jurisdiction for EU and EP patents will most probably be addressed by the Court and can hardly be resolved to the satisfaction of all Members.
Later, the Advocates General's preparatory (and non-binding) Statement of Position  raised the following essential objections on the European Council’s Draft Agreement:
  1. The guarantees to ensuring full application and observance of the pre-eminence of EU law by the EEUPC are insufficient (see §§ 78 to 93 of the Statement).
  2. The remedies available in the event of the EEUPC’s infringement of EU law and in the event of non-observance of its obligation to effect a preliminary reference are insufficient (see §§ 104 to 115 of the Statement).
  3. The linguistic system faced by the central division of the EEUPC may affect the rights of defence (see §§ 121 and 122 of the Statement).
  4. The draft agreement […] does not satisfy the requirement of ensuring effective judicial control and a correct and uniform application of EU law in administrative proceedings concerning the granting of Community patents (see §§ 68 to 75 of the Statement).
Regarding the above-identified weakness of the linguistic system, which is essentially similar to that of the Commission's legislative proposal for implementing a 'small' EU patent (without at least Spain and Italy) by enhanced cooperation, the Advocate General's Statement explained under § 121, that
a company may be summoned in law in a language in whose choice neither its country of origin nor the country where it carries out its commercial activities has participated. [...] [T]his linguistic system appears to be unacceptable with regard to observance of the rights of defence.
No doubt, the ECJ's opinion will be decisive for the European Patent project as a whole, i.e. not only for the Unified Patent Court (EEUPC) but also for the EU Patent itself. A negative opinion of the ECJ on the EEUPC would also severely affect the efforts to implement the EU patent by enhanced cooperation (see earlier postings here and here) - not only because the highly controversal language regime would then be questioned again, but also because an EU-wide patent does not make much sense for applicants, if there does not exist an efficient EU-wide Patent Court to litigate or invalidate such patents.

In a related blog posting, IAM editor Joff Wild took a very similar position and commented that
the ECJ decision is crucial because without a means of deciding disputes, in practical terms there can be no single patent. So, if you think about it, the fate of this whole project now lies within a body of men and women, sitting in a court in Luxembourg, who have not been elected and who have very little patent experience or expertise. Such is the separation of powers, of course. When writing about opinions delivered by advocates-general it is usual to say that it is rare that the ECJ disagrees with them to any great extent. And this is true. It is rare; but it's not unheard of. There will be a lot of people in Europe hoping this will be one of those occasions and quite a few folk in two southern European countries who hope that it is not.

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