Spain Fails to Block the EU Unitary Patent System

Two judgments of the Court of Justice of the European Union (CJEU) have firmly rejected all of the Kingdom of Spain's objections to the EU regulations that will create a Unitary Patent (UP) system for participating states of the European Union. As a result, the UP system and the Unified Patent Court (UPC) are free of these litigation obstacles, and can move ahead when preparations and ratifications of the UPC Agreement by 13 EU states are completed. The CJEU Press Release, summarizing the Judgments, is here. (For detailed explanations of the UP and UPC, see our webpages at https://www.fr.com/global/unitary-patent/).

The themes running through both judgments are that (1) those regulations are appropriate implementations of the EU law permitting "enhanced cooperation" by a group of EU member states, (2) the European Patent Convention (EPC) is separate from EU law, and (3) it was a group of member states that had delegated tasks to the European Patent Office (EPO), not the EU itself. This appears to bode well for the continued independence of the EPO from many aspects of EU law and relative independence of the UPC.

Specifically, the Judgment in Case C-146/13 addressed Spain's attack on Regulation (EU) No. 1257/2012, which will create a system for Unitary Patent protection in the participating states. Spain relied on seven "pleas in law," which argued that the regulation itself and the delegation to the EPO of various duties relating to Unitary Patents were inconsistent with EU law. Three of Spain's arguments were of particular interest. First, that the EPO Boards of Appeal are not independent of the EPO management, but should be. Second, that the setting of renewal fees and other tasks have been improperly committed by the EU to the EPO. Third, that the decisions of the Boards of Appeal and other acts of the EPO are not subject to any form of judicial review. Those arguments, and all of Spain's other arguments, were swept aside in the Court's Judgment, which is here.

In Case C-147/13, Spain had asserted that part or all of Regulation (EU) No. 1260/2012, which will create a translation regime for the Unitary Patent, should be annulled on grounds including infringement of the principle of non-discrimination on the ground of language, improper delegation to the EPO of administrative tasks, and various technicalities of EU law. The Court's Judgment, rejecting all of Spain's arguments, is here.

Meanwhile:

• The UP Select Committee in the EPO is expected to propose a UP renewal fee schedule by the end of June, 2015. There are widely differing views on the appropriate level of fees. The EPO is obliged to make the UP self-supporting, but must share 50% of the renewal fees with participating states. At least some of those states want to maximize their fee income. Yet user groups have uniformly told the EPO that the UP will not be used very much if the fees are set a level higher than the sum of the national fees that they now pay.
• Following a decision of the EPO Enlarged Board of Appeals questioning the dual role of the same person as Chairman of the Board and a member of EPO management, as a Vice President, a structural reform of the Boards of Appeal is in progress that is expected to separate those roles and give greater independence to the Boards of Appeal. An online consultation now in progress permits interested persons to express their views and make suggestions to the EPO regarding Boards' structures, procedures and operations.
• Although Belgium has ratified the UPC Agreement, its legality is being questioned in a case recently filed in the Belgian Constitutional Court by The European Software Market Association (ESOMA), an organization which supports the open source movement and opposes software patenting, and other plaintiffs. The principal argument appears to be discrimination of the UP system against Dutch speakers in Belgium. The real purpose appears to be to interfere with implementation of the UP system by any potentially available means.

In the near future, we will be updating our webpages at https://www.fr.com/global/unitary-patent/ on these and other UP and UPC developments.