Home » Patents » Spain v the Unitary Patent – CJEU gives Unanimous Points Decision to the Unitary Patent System

Spain v the Unitary Patent – CJEU gives Unanimous Points Decision to the Unitary Patent System

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IMG_8533Unless you’ve missed it somehow, INTA is on and the average patent attorney is probably feeling a little left out as emails and photos of the latest INTA party do the rounds. Well fear not patent attorney brethren because the unitary patent system has a lot going on today.

Yes, on a day that literally no-one (but me) is calling Turbo Tuesday, we can look forward to the CJEU’s judgments in C-146/13 and C-147/13 (Spain v the Unitary Patent: the rematch) and a packed Preparatory Committee meeting in which we expect the details surrounding the European Patent Litigators Certificate to be finalised and the consultation on the court fees for the Unified Patent Court to be given the go ahead.

The Spanish result is first up and while the judgments weren’t available at the time of writing available, a press release has been, well, released which dismisses both of Spain’s actions. [Update: the judgments are now available – C-146/13 and C-147/13]

The press release is fairly to the point and it will be interesting to read the full judgments (that’s assuming it doesn’t take 100+ days for the English translations to turn up. [Update: the judgments are now available – see above – in English]). As far as C-146/13 (challenging the unitary patent) is concerned the Court points out that the regulation doesn’t delimit, even partially, the grant conditions surrounding EP patents and that it doesn’t incorporate any of the grant procedure. So the Court does not therefore view the regulation as undermining the principle of effective judicial protection.

The Court also notes that the regulation will provide uniform protection of IP in the participating Member States and so it regards Article 118 TFEU (Treaty on the Functioning of the EU) as an adequate basis.

As far as C-147/13 (challenging the translation regime of the unitary patent) is concerned the Court suggests that the regulation “has a legitimate objective, namely the creation of a uniform and simple translation regime for the EPUE so as to facilitate access to patent protection, particularly for small and medium-sized enterprises.

The Court also states that “the language arrangements established by the regulation make access to the EPUE and the patent system as a whole easier, less costly and legally more secure. The regulation is also proportionate, as it maintains the necessary balance between the interests of applicants for EPUEs and the interests of other economic operators“.

IPcopy thinks that the reasoning, in the press release at least, stretches the impact of the translation regulation a little. When you consider that most users of the EP patent system probably only validate in a few countries that are part of the London Agreement then the need to acquire full translations of a granted patent is limited. But anyway, the Court has now spoken…

So, both Spanish challenges are now dismissed and all that remains before the unitary patent system can open its doors is to finalise the renewal fee regime, run a consultation on the court fees, get the required number of member states to ratify the UPC Agreement and hope that the UK doesn’t leave the EU in the meantime. Simples.

Mark Richardson 5 May 2015

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