On 5 May 2015 the Court of Justice of the European Union (CJEU), the highest court on matters of EU law, handed down two judgments, rejecting challenges brought by Spain to the legality of EU laws that had been enacted to provide for the unitary patent and the Unified Patent Court (UPC). These challenges were the last legal obstacles to the proposed unitary patent regime.
The “unitary patent package” comprises two EU Regulations – one setting out how a patent application granted by the European Patent Office can take effect as a unitary patent across participating EU member states, the other addressing translation issues – and the Unified Patent Court Agreement, a separate treaty between the participating countries which establishes the court that will have jurisdiction to hear disputes concerning unitary patents (and, subject to transitional provisions, existing and future “non-unitary” European patents).
Spain challenged the legality of the two EU Regulations, raising a number of legal objections. Spain’s arguments included claims that the first regulation lacked legal basis under EU law and further infringed the rule of law, as the grant of unitary patents would be entrusted to the European Patent Office, a non-EU body whose decisions could not be subjected to judicial review to ensure the correct and uniform application of EU law. On the regulation dealing with translation issues, Spain’s arguments included a claim that the regulation amounted to discrimination against EU citizens whose language was not French, German or English. Indeed, the precedence given to these three languages over Spanish was at the heart of Spain’s opposition to the new patent regime.
The CJEU found all of Spain’s objections to be unjustified. In brief, the first regulation merely established the conditions under which a European patent granted by the EPO could benefit from unitary effect; it did not incorporate the procedure for granting European patents into EU law. Further, the translation arrangements achieved a legitimate object of ensuring that the translation regime was simple and cost-effective, which would facilitate access to patent protection, particularly for small and medium-sized enterprises. Entry into force of the UPC and unitary patent regime now depends only on ratification of the UPC Agreement by a further seven member states, which must include the UK and Germany, beyond the six (including France) who have already ratified. It is expected the UPC will be up and running and that the first unitary patents will be granted in 2016 or 2017.