Rebecca Baines has been quoted in an article published in World Intellectual Property Review on the CJEU rejecting Spain's challenges to the legality of the UPC. 

Please find below:

The Court of Justice of the European Union (CJEU) has rejected Spain’s challenges to the legality of the unitary patent and Unified Patent Court (UPC).

The ruling paves the way for the unitary patent and UPC’s implementation.

In two separate judgments (C-146/13 and C-147/13) issued today (May 5), the CJEU ruled that both regulations 1257/2012 and 1260/2012 of the Official Journal of the European Union are valid.

The regulations outline the way the unitary patent system will be administered. The system is set come into effect after 13 member states, including France, UK and Germany, ratify the guidelines on the unitary patent.

Regulation 1257/2012 covered “implementing enhanced cooperation in unitary patent protection”.

In March 2013, Spain moved for a judgment from the court that declared the regulation “legally non-existent” and that would annul it in its entirety.

It argued that the regulation lacked the legal basis of article 118 of the Treaty of the Foundation of the European Union, which provides uniform protection to intellectual property rights across the EU.

It added that the regulation was not subject to a judicial review that would ensure it followed the application of EU law correctly.

But the court rejected Spain’s arguments. It said: “The regulation is in no way intended to delimit, even partially, the conditions for granting European patents ... it does not incorporate the procedure for granting European patents laid down by the European Patent Convention into EU law.

“Unitary patent protection is apt to prevent divergences in terms of patent protection in the participating member states and, accordingly, provides uniform protection of IP rights,” it added.

In the second judgment, C-147/13, the CJEU rejected Spain’s challenge to regulation 1260/2012.

Regulation 1260/2012 covered translation services of unitary patents and the languages in which patent disputes are contested. Under the regulation, patent disputes and translations are administered in French, German and English, and not Spanish.

Spain argued that the omission of its language “disregarded the principles of non-discrimination” and was therefore prejudicial to “individuals whose language is not one of the official languages”.

But the court dismissed this challenge, arguing that the language arrangements proposed in the regulation ensure easy access to the system and are less costly to patent owners.

“The regulation has a legitimate objective, namely the creation of a uniform and simple translation regime, so as to facilitate access to patent protection, particularly for small and medium-sized enterprises,” the court said.

Last November, CJEU Advocate General Yves Bot recommended that the court dismiss Spain’s challenge.

The challenge was the UPC’s final legal hurdle to clear before it can take effect. Today’s ruling means that the unitary patent and UPC can be implemented once the necessary nations have ratified the agreement.

Rebecca Baines, partner at law firm Rouse, said: "The CJEU’s decision removes one of the last key stumbling blocks to the establishment of the UPC and the unitary patent, which are already long overdue.

"The CJEU's judgment means that the new system will go ahead—with or without Spain—providing that the UPC agreement is ratified by a further seven EU Member States, including the UK and Germany," she added.

This article was first published in World Intellectual Property Review and is available here.