There was good news today for the Unitary Patent system. The AG's opinion stated that Spain's latest challenges to the UPC are unfounded, that the legal basis for the disputed regulations are valid, affirmed the role of the EPO in the new Unitary Patent system and backed the use of a limited number of languages for the new Unitary Patents. The CJEU is likely to follow the AG's Opinion (although is not bound to do so), and implementation of the Unitary Patent package will continue to progress towards a 2016/17 launch.
The Advocate General's Opinion on Spain's second
challenge to the UPC, originally expected on 21st October, has been
finally issued after a significant delay. The AG recommended that
Spain's actions against the European Regulations implementing
enhanced cooperation in the area of the creation of unitary patent
protection must be dismissed. In his Opinion, the unitary
protection conferred by the disputed Regulations provides a genuine
benefit in terms of uniformity and integration, and the limited
choice of languages considerably reduces translation costs and
safeguards the principle of legal certainty.
Background
Spain's challenges (C-146/13 and C-147/13)
focussed on the legal basis of the unitary patent, the proposed
language Regulations, and the involvement of the EPO in the
administration of the new system. After failing in its previous
joint challenge with Italy against the use of "enhanced
cooperation" procedures to create the Unitary Patent system,
Spain then turned to challenging the legality of the two
Regulations at the heart of the Unitary Patent system (Regulation
(EU) Nos 1257/2012 and 1260/2012).
The legal basis for the Directives
is valid
The CJEU heard Spain's case on 1st July 2014.
Notably, Spain argued that the legal basis for the Regulations was
inappropriate, because it intentionally kept issues of patent
validity and infringement outside EU law, and thus also outside the
remit of the CJEU. The consequence of this, according to
Spain's challenge, was that by creating a Unitary Patent
system, the Directives do not actually harmonise Member States'
Law.
The AG's opinion addressed this harmonisation issue by stating
that the sole purpose of the Regulation is to allow for unitary
effect of a European Patent, and that uniform protection brings a
real benefit in terms of harmonisation and integration.
On the subject of the new Unitary Patent Court, which will itself
be outside the remit of the CJEU, the AG took the view that he, and
the CJEU, did not have the jurisdiction to review the content of
the Agreement on the UPC. The Agreement that creates the UPC is an
intergovernmental agreement negotiated and signed only by certain
Member States on the basis of international law, and as such the
CJEU has no jurisdiction. In any case, the AG noted, the creation
of the UPC provides enhanced cooperation in the area of Unitary
Patent protection, and the establishment of the UPC is essential.
Member States participating in the UPC Agreement are bound by the
EU principle of sincere cooperation, and therefore must ratify the
UPC Agreement to help achieve the objectives of harmonisation and
uniform protection within the EU. Consequently, there is no problem
associated with the implementation of an EU regulation being
dependent on the separate UPC Agreement, even though it has been
made outside of the framework of EU Law.
The regulation does not contravene
the Meroni
principle
Spain also challenged the Regulations, based on what
it saw as the delegation of powers to the EPO. Spain believed that
such delegation would be contrary to the Meroni
principles, which limits the delegation of powers by Community
institutions. In delegating powers to the EPO to administer the
Unitary Patent and to collect, apportion and distribute renewal
fees for unitary patents to member states, Spain argued that the
Commission had delegated powers that it did not actually possess,
and that the powers were delegated with insufficient control, which
would lead to an imbalance of power between institutions.
Delegation of powers to the EPO was also challenged on the grounds
that the EPO does not apply EU law and is not subject to judicial
review by the CJEU.
Involvement of the EPO in the Unitary Patent System is essential,
and the AG also dismissed this part of the challenge, stating that
the sole purpose of the contested Regulations is to allow for
universal recognition throughout Europe of a patent already granted
under the existing provisions of the EPC. The Regulations provide
an additional characteristic for European patents, but do not
change the procedure administered by the EPO. The AG's Opinion
also notes that the participating Member States have the power to
set the level of renewal fees for European patents having unitary
effect.
The linguistic regime is
appropriate and proportionate
Spain also argued that the proposed linguistic regime
for the UPC unfairly advantaged those whose mother tongue is
English, French or German. In a similar approach to the attack on
delegation of powers relating to renewal fees, Spain also
challenged delegation of powers to the EPO to administer the
publication of translations as contrary to the Meroni
principle. This part of the challenge came as no surprise, given
Spain's history of challenging the linguistic regime of
European patents. The AG's Opinion deals with this language
issue in a pragmatic way. While acknowledging that discrimination
would occur against persons who do not know any of the official
languages (English, French or German), the AG's view was that
any such discrimination was outweighed by the advantages of using
only these languages. The choice of official languages has been
made to enhance legal certainty, avoid excessive translation costs,
and to reflect the linguistic reality of the existing patent system
in Europe. In pursuit of these legitimate objectives, the AG's
Opinion was that the proposed linguistic regime was appropriate and
proportionate.
Summary
This latest development may not be the end of
Spain's campaign, but it comes as a relief that the AG today
recommended the dismissal of all of Spain's challenges. The
CJEU is likely to follow this opinion; the political landscape also
cannot be ignored, all of which currently points to the launch of
the Unitary Patent package in 2016/17.
The full press release is available here.
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