Today, 18 November, the Court of Justice of the European Union (CJEU) released two eagerly-awaited opinions relating to the Unitary Patent package.
In cases C-146/13 and C-147/13 the Spanish Government demanded that two European regulations, relating to the implementation of “Enhanced Cooperation” in the creation of a patent with unitary effect and the implementation of the relevant translation arrangements, be annulled.
In the opinions of Advocate-General (AG) Yves Bot which were released today, it is recommended that both of Spain’s actions should be dismissed in their entirety. While the AG’s opinions are not binding on the Court, in most cases the Court will tend to follow the AG’s opinion closely. Unless the CJEU departs significantly from the AG’s opinions it therefore seems that the Spanish government’s hopes of stopping the implementation of the unitary patent system in its current form will be quashed.
Full details of Spain’s pleas, and the text of the AG’s opinions, can be found elsewhere. More detailed analysis will no doubt be forthcoming in the near future. For now, however, it is particularly interesting to note that, in the AG’s opinion, the content of the Unified Patent Court (UPC) Agreement does not fall within the jurisdiction of the CJEU. Although the UPC Agreement does not directly form part of either of the Regulations challenged by Spain, it does form part of the national laws which the Regulations refer to. Concerns had been raised in some quarters that this cross-reference would have been sufficient to cause the CJEU to have jurisdiction in matters of substantive patent law including infringement and validity. Provided that the Court follows the AG’s opinion, it seems that the danger has been significantly reduced for references to the CJEU on such well-established principles of patent law.
While some aspects of the unitary patent system remain unclear, and the UPC Agreement still requires ratification by eight more member states including the UK and Germany before it can enter into force, it seems increasingly likely in light of today’s Opinions that the unitary patent and the unified patent court will become a reality before too long, perhaps by 2016.