As IPcopy covered back in June last year, Spain has launched further attacks against the unitary patent system at the CJEU. There are several bases for the complaint including breach of the principles of autonomy and the issue of delegation of powers to the European Patent Office whose acts are not subject to judicial review.

At the always entertaining Wragge & Co. annual patent seminar in December last year, the Virgin v. Zodiac case that recently passed through the UK’s Supreme Court was discussed in the context of res judicata and the end of the Unilin principles. However, this case may also illustrate the issues that can arise when the EPO gets something wrong and there’s no means for appeal.

The Supreme Court case centered on Virgin Atlantic Airways Ltd’s attempts to recover damages exceeding £49 million (!) for the infringement of a European patent that no longer existed in the form said to have been infringed.

What is particularly interesting about the Virgin/Zodiac case in the context of the unitary patent system and Spain’s challenge to that system is that it relates to a patent that should never have had effect in the UK were it not for an administrative mistake by the EPO!

(more…)