The European Parliament has postponed a planned vote on the unitary patent law it drafted jointly with the European Council. The delay has occurred because the Council made certain amendments to the proposed text of the draft law to limit the role of the Court of Justice of the European Union (CJEU).
The heads of government of the European Union Member States reached agreement on Friday 29 June 2012 to place the central division of the planned European Union Patent Court in Paris, with specialised subdivisions in London and Munich. The Council also decided, however, to delete part of the proposed draft law it had agreed with the Parliament in December 2011.
Articles 6 to 8 of the draft law, as removed by the Council, contained provisions on direct and indirect infringement of patent rights and allowed the CJEU to function as an appellate court within the scope of the patent law. The consequence of removing Articles 6 to 8 is that the CJEU is excluded from the future unitary patent system.
The Council and the Parliament had agreed in December 2011 to approve the law as it then stood. Amending the proposed draft at this point means essentially that the agreement no longer exists and the procedure has been broken. Whether it is legal to delete Articles 6 to 8 and thus exclude the CJEU from the future patent system will now have to be a point of debate within the Parliament.
The decision to remove the three articles had the support of the European Scrutiny Committee of the UK House of Commons. According to the Committee, the inclusion of the three articles would lead to “anomalous consequences”, as allowing the CJEU to be part of the future unitary patent system would defeat the whole purpose of having a specialist patent court.
It is worth noting that, whilst excluding the CJEU from the future unitary patent system might be the right thing to do for patent law according to some sources, it is inevitable that the CJEU will become involved as a matter of EU law. This calls into question whether incorporating a unitary patent regime within the European Union will ever be practicable. Nevertheless, with the support and momentum the European unitary patent system has gathered, it is unlikely that this dispute will spell the end of the unitary patent entirely.