The Court of Justice of the European Union (CJEU), sitting as a full court, has decided today that the proposed European Patents Court is incompatible with the European Union. A link to the CJEU's opinion can be found here.

The European Patents Court would have had the exclusive jurisdiction to hear infringement, validity, and various other matters arising in Member States of the European Union regarding existing European Patents granted under the European Patent Convention and the proposed new unitary patent. The proposed unitary patent is intended to have a unitary character across the Member States of the European Union. The current agreement, in contrast to the Community trade mark and Community design regimes, envisaged such unitary patents being granted by the EPO rather than a separate EU governed institution.

Creating a court which had exclusive jurisdiction in relation to those matters would have conferred jurisdiction on a court not itself subject to the jurisdiction of the Court of Justice of the European Union. Whilst patent law is not fully harmonised within the European Union, the conferring of jurisdiction to such a court would, in some circumstances, deprive citizens of the European Union's member states of remedies available against member states and national courts for non-compliance with the laws of the European Union. This was clearly unacceptable to the CJEU.

If the Unitary patent is to make progress now it is clear that CJEU requires itself, rather that the specialist court envisaged, to be the final authority over it - something which the patent community largely regards as inappropriate.