On Friday last week, a mere 101 days from the day the Advocate General delivered his opinions in C-146/13 and C-147/13 the English translations of those opinions finally became available*.

The AG’s opinion (English version) in C-146/13 relating to enhanced cooperation in the area of the creation of unitary patent protection can be found here.

The AG’s opinion (English version) in C-147/13 relating to enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements can be found here.The two opinions, as previously reported, dismiss both actions from Spain in their entirety. IPcopy is sure that the opinions will be picked over in great detail in the coming days and weeks but with regard to C-146/13 the following, at least, jumped out when we skimmed the opinion.

Spain’s first plea (of seven) was that they claimed “that the contested regulation provides for protection based on the European patent, whereas the administrative procedure for the grant of such a patent is not subject to any form of judicial review which ensures the correct and uniform application of EU law and the protection of fundamental rights.”

In the arguments of the parties to the case Spain claimed “that it is unacceptable that the contested regulation should incorporate into the EU legal order measures emanating from an international body which is not subject to the aforementioned principles. First, the Boards of Appeal and the Enlarged Board of Appeal are bodies established within the EPO which are not independent of it and, second, their decisions are not subject to any form of judicial review”.

In reply the European Parliament and the Council contended that the level of protection of individual rights afforded by the established system is compatible with the principles of the rule of law and in particular the Council noted that “The independence and judicial nature of the Boards of Appeal and Enlarged Board of Appeal were confirmed by the European Commission of Human Rights, [ECtHR, Lenzing AG v. Germany (dec.), no. 39025/97] and the European Court of Human Rights has held that the protection of fundamental rights in the EPO is, in general, equivalent to the levels of protection guaranteed by the German Constitution“.

This section would appear to have taken on a greater relevance since the recent discussions regarding the independence of the Boards of Appeal of the EPO. Would the arguments here have been different if the independence of the BoA had been called into question before the hearing in July last year?

It was also noted that “there is nothing to prevent the Organisation [the European Patent Organisation] from stating in an international agreement that its decisions are subject to review by a judicial authority.”

IPcopy can only wonder what the parties to the Virgin/Zodiac case may think of this statement!

Mark Richardson 2 March 2015

* Many thanks to Dr Ingve Stjerna for bringing IPcopy’s attention to this.