14 January 2013

The role of the EU Court of Justice in the future European post-grant patent infrastructure

In our yesterday's posting on the ksnh::law blog titled "Does Art 5 UPP Regulation enable CJEU Jurisdiction over Substantive Patent Law?", we attend to the role the Court of Justice of the European Union (CJEU) will play in the new European patent post-grant infrastructure.

This role is basically determined by Article 5.3 of the Unitary Patent Protection Regulation (UPPR), which provides a link to substantive patent law as codified by Articles 14f to 14i of the Unified Patent Court Agreement (UPCA) via referring to the "national law [of that participating Member State being] applicable to the European patent with unitary effect as an object of property" according to Art 7 UPPR.

Whether or not this link is strong enough to authorise the CJEU to hand down preliminary rulings according to Art 267 TFEU in the area of substantive patent law will be subject to interpretation by ... the CJEU itself. And there are some indications that the CJEU might not let such an opportunity slip through its fingers, such as espressed in opinion 1/09 on the compatibility of a predecessor of the UPCA - the EEUPC agreement - with EU law.

Before this background, it might be interesting to consider this tweet on @ksnhlaw in view of the observations of A Dimopoulos and P Vantsiouri as presented in their paper "Of Trips and Traps: The Interpretative Jurisdiction of the Court of Justice of the EU Over Patent" in June 2012.

According to their study, the CJEU can, regardless of the concrete wording of the UPPR and UPCA, anyway acquire a stronger role in the application of patent law by using its jurisdiction over the patent provisions of the TRIPS Agreement, such as the substantive provisions of Art 28, since Art 208 TFEU provides the EU and its highest court with exclusive competence over "commercial aspects of intellectual property", which would incorporate the TRIPS agreement into the body of EU law (see also here).

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