The Advocate General of the Court of Justice of the European Union has advised that a challenge from Spain as to the legality of the proposed system for establishing a Unitary Patent in the EU should be dismissed. This provides an early indication that establishment of a system for Unitary Patent protection throughout Europe will continue to go ahead as planned.

The proposed system for the Unitary Patent (UP) represents an extension of the existing system of European patent protection. It promises a single patent right having territorial scope that will extend to all participating EU Member States, with a view to harmonising patent practice across the Union.

A detailed commentary on the Unitary Patent can be found in the Reports section of our website.

Existing European patent rights, following grant and validation, take effect as a bundle of individual national patents. These individual national patents must be enforced and maintained separately in each of the countries in which they are validated. In contrast, a UP would provide a single right which can be enforced and maintained throughout the EU collectively. Advocates of the UP anticipate that it would achieve a significant reduction in the costs of obtaining, enforcing and maintaining patent protection throughout Europe. 

However, in 2013 Spain challenged the legality of the Agreement formally establishing the UP. Spain’s main issue with the UP is related to its language provisions. The UP seeks to streamline translation requirements with European patent rights such that only the English, French, and German languages would be adopted. Spain argues, however, that this would discriminate against persons whose native language was not English, French or German.

Advocate General Yves Bot has now advised the Court of Justice of the European Union (CJEU) that Spain’s action should be dismissed. In a media release summarising the reasoning behind the Advocate General’s opinion, he explains that

“…to limit the number of languages for the European patent with unitary effect is appropriate because it ensures unitary patent protection throughout the territory of the participating Member States whilst enabling a significant reduction in translation costs to be achieved”.

The full media release can be found on the CJEU's website and the full text of the Advocate General’s opinion (which is in French and has not been translated into English at the time of writing this article) can also be found on the CJEU's website.

Although such opinions of the Advocate General are not binding, in 80 per cent of cases they are subsequently endorsed by the CJEU in its rulings. The opinion of the Advocate General therefore provides a strong indication that the UP will go ahead as planned.

While it is likely that the CJEU will endorse the Advocate General’s opinion, a working system for the UP is still being debated. Implementation of the UP requires significant cooperation between EU Member States, and a number of issues are yet to be finalised before the first UPs can be granted.

The final judgement from the CJEU is expected in mid-2015.