Advocate General says "non" to proposed new European patent plan

The IPKat says a big "thank-you" to some very public-spirited soul at London solicitors Bristows for getting a press release out this morning on the 34-page Opinion of the Advocate General on Case 1/09 on the legality of the proposals for the clumsily-named European and European Union Patents Court. According to the press release:

"The long-awaited opinion of the Advocate General of the European Court of Justice on the proposed system for the EEUPC (European and European Union Patents Court), has now been released. Dated 2 July, but appearing only late last week on a patent lawyers’ blog site [here], the opinion comes down firmly against the legality of the proposed arrangement, concluding that: “As it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties”. In June 2009, the Legal Service of the Council of the European Union requested the opinion of the ECJ on the compatibility with the EU Treaty on the envisaged agreement creating a unified patent litigation system - a system which would also be fundamental to the subsequent creation of the Community Patent (recently re-named as the European Union Patent). In the request it was stated that a number of legal concerns had been expressed by members of the Council. However, it was also stated that a majority of members of the Council believed that the envisaged agreement constituted a legally possible way to achieve the aims of creating a unified patent litigation system for European patents and paving the way for the same litigation system to be used for the new single European Union Patent. Doubtless the Council (and indeed the Commission) had expected the ECJ to decide that the proposed arrangement would be compatible with EU law. As it is, the AG has concluded that this is not the case, holding that the proposed arrangements are incompatible with EU law in four major respects. One particularly unwelcome view is that the language regime of the Court’s proposed central registry (which would conduct litigation in the language of the patent - English, French or German) is not compatible with the rights of Defendants who do not work in such languages [what about us poor English, who have been trying all morning to get an English-language copy of what looks like a French-only text, growls the Kat].

So where does this leave the EEUPC dossier? The first point to make is that this is merely the opinion of the AG, not the Court. It does not bind the Court and it is far from unknown for the Court to follow a different path - effectively ignoring the AG's opinion. Even if that were to happen, however, it would still represent a significant set-back for the process. In particular, the views expressed on the language regime will doubtless be seized upon by those countries, led by Spain, which have long resisted the three language proposal, and only encourage their continued resistance to the proposal. And of course the ECJ may decide to follow the AG's opinion. If so, the future of the dossier must be truly bleak, because the alternative to the present proposal would have to be radically different and probably unacceptable to many Member States. Even if the politicians could arrive at a new proposal - which would surely take many years - in order to be acceptable to the ECJ it would probably have to include the ECJ as the Court adjudicating European patent disputes. This has long been regarded by many as a complete deal-breaker because of the Court's record in relation to trade marks, as well as the slow nature of the ECJ process. The possibility of all European patent litigation going to the ECJ will certainly horrify many industry groups who are almost universally opposed to such a prospect. In the short term we await with interest the reaction of the Belgian presidency which is currently in charge of the project. The reaction of the European patents judges who will be meeting in Venice in the autumn will doubtless also be informative. Says Alan Johnson, partner in Bristows' IP department: "It seems likely that the European patents Judges will be extremely critical of the Advocate General's opinion, and for the sake of the project it is to be hoped that their views will be heeded by the ECJ."

In short, the fate of the single Court and single patent remains in the balance, but the scales look to be tipping badly against them. We await the decision of the ECJ itself with great interest".

For national submissions on this case see PatLit here.

The IPKat hopes to get some comment of his own posted in due course. Meanwhile, let's hear it from our readers.

LATEST NEWS: Kevin Mooney (Simmons & Simmons) has come up with the English translation (many thanks, Kevin!) and Kristof Neefs (Altius) gives a brief summary. You can see them both here on PatLit.