Court Of Justice Rejects Unified Patent Litigation Proposal

Author:Mr Nick Beckett and Scott Fairbairn
Profession:CMS Cameron McKenna LLP

Court of Justice Rejects Unified Patent Litigation Proposal while Member States Seek Progress

On 8 March the Court of Justice of the EU (CJEU) delivered its opinion on a proposal to create a new unified patent litigation system and a new European and Community Patents Court, concluding that such a system would be incompatible with European Law. However this decision was shortly followed by the news that the vast majority of Member States are in favour of a new unitary patent regime and wish to work together to ensure that it happens.

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Court of Justice Rejects Unified Patent Litigation Proposal while Member States Seek Progress

Currently there is no single unitary patent applicable across the whole of Europe, nor is there a mechanism by which patents can be enforced across Europe centrally in one forum. While the European Patent Office provides a centralised system for the grant of patents valid in a number of European countries, those patents nevertheless exist as national rights which must be enforced on a jurisdiction by jurisdiction basis. In disputes which span several countries, a unified patent and a mechanism to enforce patents via a centralised court would offer the prospect of considerable cost savings and remove the risk of inconsistent decisions in different jurisdictions.

The Council of the European Union approached the CJEU in 2009 asking the CJEU to consider the creation of a unified patent litigation system across Europe. The proposals (in the form of a 'draft agreement') include the creation of a unitary patent having equal effect across the European Union which could be granted, transferred, declared invalid, or lapse only in respect of that territorial area. The draft agreement also provides for the creation of a new European and Community Patents Court (the PC) consisting of a Court of First Instance and an Appeal Court. The draft agreement also envisages the creation of a new joint registry.

Court of Justice Not in Favour

The CJEU considered the draft agreement alongside various submissions from a number of Member States and the Treaties underpinning the European Union, and concluded that the draft agreement is not compatible with EU Law. The CJEU's main objection was that a unified patents court would "deprive courts of Member States of their powers in relation to the interpretation and application of European Union law." This would, in effect, remove national...

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