Fresh from the Press: The Pleas in Law of the Spanish Actions against the Unitary Patent Regulations

El Kato strikes back after the bitter defeat 
in the case against enhanced cooperation

God knows that this Kat is not a big fan of the unitary patent package - not because it dislikes the idea of unitary patent protection for the Internal Market, but precisely because it does like it. However, creating a "unitary patent" which claims EU origin but disclaims EU character, just because something is supposedly better than nothing, is rather an act of desperation than sensible policy making. This is not the place and not the time to repeat old arguments, but [despite Merpel's warning that this might offend the sensibilities of some readers] one thing cannot be said often enough: False integration can be worse than no integration; and a bad court system is not necessarily better than no court at all. It may be true, to a certain extent, that the system can be improved once it is in force. But a house built on a shaky foundation will always be in danger of collapsing, no matter how many cosmetic repairs are made.

Having said that, here are the pleas in law and the main arguments of the Spanish action against the unitary patent Regulation (Case C-146/13):

(1) Breach of the values of the rule of law in so far as a regulation has been established on the basis of a right granted by the European Patent Office, whose acts are not subject to judicial review. 

(2) Non-existence of an act of the European Union and, in the alternative, lack of a legal basis for Regulation No 1257/2012 in that it does not introduce measures guaranteeing the uniform protection envisaged in Article 118 TFEU. 

(3) Misuse of power through the use of enhanced cooperation for purposes other than those provided for in the Treaties. 

(4) Infringement of Article 291(2) TFEU and, in the alternative, misapplication of the Meroni case-law in the regulation of the system for setting renewal fees and for determining the 'share of distribution' of those fees. 

(5) Misapplication of the Meroni case-law in the delegation to the European Patent Office of certain administrative tasks relating to the European patent with unitary effect. 

(6) Breach of the principles of autonomy and uniformity in the application of European Union law, as regards the rules governing the entry into force of Regulation No 1257/2012.

And those against the translation Regulation (Case C-147/13):

(1) Infringement of the principle of non-discrimination by introducing a scheme to the detriment of persons whose mother tongue is not English, French or German, the scheme being disproportionate to the objective pursued. 

(2) Lack of legal basis for Article 4 by regulating translation in the event of a dispute, which does not directly affect the language arrangements for the intellectual property right referred to in the second paragraph of Article 118 TFEU. 

(3) Infringement of the principle of legal certainty. 

(4) Failure to have regard to the case-law in Meroni by delegating the administration of the compensation scheme (Article 5) and the publication of the translations (Article 6(2)) to the European Patent Office. 

(5) Infringement of the principle of the autonomy of European Union law by making the application of the Regulation dependent on the entry into force of the Agreement on a Unified Patent Court.

All in all, the actions seem better prepared than the case against enhanced cooperation; and the chances of success are good. Not all claims may be equally strong, but some of them are very likely to hit the mark. This Kat is therefore confident that the Spanish actions will fulfil their purpose: Bringing the Member States back to the negotiating table in order to give Europe the patent system that it needs (and deserves): a fully integrated EU patent and not just a half-hearted compromise.