Having (probably) failed in their attempt with Italy to derail the unitary patent package by poking the enhanced cooperation procedure with “the soft cushions” (see here), Spain has now wheeled out “the Comfy chair” and is bringing two further cases in front of the CJEU to try and stop the unitary patent system from going forward. (Those of you wondering why I’ve suddenly developed a soft furnishings fixation are respectfully referred here.)

Yes, Spain has now filed actions C-146/13 and C-147/13 at the CJEU against the European Parliament and the European Council (against Council Regulation (EU) No 1257/2012 [implementing enhanced cooperation in the area of the creation of unitary patent protection] & Council Regulation (EU) No 1260/2012 of 17 December 2012 [implementing translation arrangements] – see here).

So what does this mean for the prospects of the system?

Well, in our opinion this latest challenge is unlikely to slow the progress of the unitary patent system down too much. Indeed, we can’t help but feel that the reaction of the other EU countries is likely to be one or more of: “Bring it”, “Come and have a go if you think you’re hard enough” and “Call that a legal challenge? That’s just a flesh wound.”

It should be considered that the European Commission, the EPO and all the participating member states within the enhanced cooperation procedure are expending large amounts of time and resources in getting the system ready. In particular, everyone is now busy trying to take the new unified patent court from zero to fully operational within a year or so (which process comprises finding and training judges, setting up a mammoth IT system, setting up the local, regional and central divisions to name just a few tasks that are currently underway).

To think that all this will be put on hold while this latest challenge plays out over the next couple of years seems unlikely.

It should also be considered that the previous challenge in the joined cases from Spain and Italy  (C-274/11 and C-295/11 respectively) is still ongoing (the Advocate General having delivered an opinion in December 2012 and the CJEU decision still pending) and this hasn’t stopped the flurry of activity leading up to the agreement of the final texts and the signing of the UPC agreement.

What is interesting to consider is where we’ll be when this latest challenge concludes. Ratification of the UPC agreement is expected to bring the system into effect in 2014 or 2015 which would seem to coincide fairly neatly with the outcome of C-146/13 and C-147/13.

Mark Richardson   28 March 2013

“Your mother was a hamster and your father smelt of elderberries”