The Advocate General’s opinions on the two Spanish actions (C-146/13, C-147/13) against the Unitary Patent Package were published today. A Press Release has also been published.

Long story short? Sorry Spain!*

*(At least as far as the Advocate General is concerned. The CJEU’s ruling on the matter will follow at some point and though it might seem likely that the Court will follow the AG, that isn’t necessarily so).

The slightly longer story comes in the first four paragraphs of the Press Release which are reproduced below:

The current European patent protection system is governed by the Convention on the Grant of European Patents. That convention provides that, in each of the Contracting States for which it is granted, the European patent is to have the effect of and be subject to the same conditions as a national patent granted by that State.

Through the ‘unitary patent package’, the EU legislature sought to confer unitary protection on the European patent and establish a unified court in this area.

Spain seeks annulment of the two regulations forming part of that package, namely the regulation on the creation of unitary patent protection conferred by a patent and the regulation governing the applicable translation arrangements.

In his Opinion in both cases, Advocate General Yves Bot proposes that the Court of Justice should dismiss Spain’s actions.

The full Press Release can be found here. We’ll take a more in-depth look at the AG’s decisions in due course.

As noted above the CJEU will rule on this issue shortly (IPcopy had heard early 2015 though we’re happy to be corrected). It seems likely to IPcopy that the CJEU will rule in a similar manner (the Press Release for the AG’s opinion doesn’t seem to leave much wiggle room), however, it’s not “a done deal” and it is possible that the CJEU could go another way or depart in places from the AG’s position. On this point, the Press Release does come with the following note:

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

However, barring major surprises it should hopefully be full steam ahead for the Unitary Patent Package in due course.

[Further reading: How often does the ECJ follow Advocates General? via Out-law.com]

Mark Richardson 18 November 2014

[Update 1: This post was updated slightly from its original form to highlight that the CJEU is not bound by the AG’s opinion

Update 2: First paragraph updated following publication of the Opinions]