Again, a Step Closer to the Unitary Patent System

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05/05/2015: The Court of Justice of the European Union dismisses both of Spains actions against the Regulations 1257/2012 and 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection.

The pleas in law filed by the government of Spain against these Regulations were as follows:

  • Breach of the rule of law: the UP Regulation concerns a right granted by the European Patent Office, whose acts are not subject to judicial review;
  • A lack of a legal basis, or non-existence: the UP Regulation does not introduce measures guaranteeing uniform protection and in part refers only to non-EU law (that is, the UPC Agreement);
  • Misuse of power: enhanced cooperation has been used for purposes other than those provided for in the European Union Treaties;
  • Failure to have regard to the Meroni case law and Article 291(2) TFEU by delegating the administration of the compensation scheme and the publication of translations to the European Patent Office;
  • Infringement of the principle of the autonomy of European Union law: the application of the Regulations is dependent on the entry into force of the UPC Agreement; and
  • Infringement of the principle of non-discrimination: the Translation Regulation is detrimental to persons whose mother tongue is not English, French or German.

Given the positive opinion of the General Advocate, this outcome is unsurprising. On the other hand, it can be said that one of the last hurdles in establishing the new system has been cleared. As soon as 13 member states have ratified the UPC agreement (currently: Austria, Belgium, Denmark, France, Malta and Sweden; still missing: Germany, UK and 5 other member states), the new system should be in force.



Article Published May 11, 2015