The Advocate General released his opinions on the two Spanish challenges to the unitary patent system in November last year and in December there was much discussion online about the independence of the Boards of Appeal at the EPO.

Anyone curious about whether the developments at the EPO might be relevant to the Spanish challenges to the unitary patent are encouraged to head over to Dr Ingve Stjerna’s website (link below) and read his latest paper ” Unitary patent and court system – Advocate General’s Statements of Position: Superseded by reality”.

Dr Stjerna has kindly given permission for us top reproduce the introduction to his paper below:

On 18 November 2014, Advocate General Yves Bot‘s Statements of Position in the Spanish nullity proceedings against the two Regulations on the “unitary patent” were published, his recommendations to the Court being a rejection of the actions. Once again, the legal issues are subordinated to the political interest in the implementation of the “patent package”, however, based on a widely not very convincing argumentation. Especially the Statement in case C-146/13 largely tries to avoid any contextual debate of the critical aspects raised, e. g. in relation to the adequacy of legal protection at the European Patent Office, while contradictions and misunderstandings occur repeatedly. Not least in view of the recent events at the European Patent Office, culminating in the suspension of a Boards of Appeal member by the President, the question arises to what extent the Statements of Position can form a suitable basis for the Court’s decision at all.

The full paper, which can be accessed here, also comments on the lack of an English translation for the AG’s opinions as well as some other arguments raised by Spain such as: violation of the autonomy and uniformity of Union Law; lack of legal basis; violation of the Rule of Law principle through the involvement of the EPO in the unitary patent system.

Mark Richardson 16 January 2015