On Monday we posted an update on the progress of the two actions before the CJEU from Spain in respect of the Unitary Patent Package (short summary: the Advocate General’s decision has been delayed). We subsequently received a notice from Dr Ingve Stjerna relating to his latest paper on the unitary patent (Regular readers will be aware that Dr Stjerna has written a number of articles on the unitary patent system which can be accessed here).

Dr Stjerna’s latest article touches upon the Spanish decisions and so we’ve highlighted a few points of interest below. The full article can be accessed here.

• The outcome of the CJEU actions could potentially impact the ratification process, regardless of whether the complaints are rejected or upheld. The impact in the latter scenario is clear but Dr Stjerna highlights the UK’s position with respect to the interaction between the unitary patent system and the CJEU as a potential stumbling block. [Presumably, Dr Stjerna is suggesting that if the CJEU reject the Spanish challenge but confirm they [the CJEU] have a larger role in the system than the UK is comfortable with then this may have some blow back onto UK ratification. Personally, I’m not sure whether this would have any effect; I think we’re probably too far down the line for the UK to have cold feet]
• Dr Stjerna suggests that the delay in the AG’s opinion may be to allow the UK to run through ratification before the AG’s opinion issues. [Alternatively, the delay may have been caused by nothing more than the Powers that Be realising that the Spanish actions represent a bigger can of worms than they’d previously appreciated!]
• Dr Stjerna’s paper includes an interesting reference to a Statement of Position from a CJEU Advocate General on “a draft international agreement, the purposes of which is to establish a European patent court (“JB”)”. This opinion dates from July 2010 and highlights some issues with the legal position of the EPO in the context of such an agreement. From an initial review of this agreement it appears that the CJEU opinion flags up that “decisions of the EPO concerning patents can only currently be reviewed by the internal chambers of appear created within the EPO, excluding any judicial appeal before an external court”. The opinion suggests that this issue could be addressed either by allowing administrative proceedings against decisions of the EPO to fall within the competence of the future patent court or to allow referrals to the CJEU to occur.
• The UPC Agreement at Article 66 does provide the Court with powers relating to the EPO’s administrative tasks associated with the unitary patent system. However, the Court does not have wider powers to look into all EPO decisions. Whether this 2010 opinion factors into the current Spanish actions at the CJEU only time will tell.

Mark Richardson 8 October 2014