Monday, 3 June 2013

Spain's arguments against unitary patent published

Last Friday the pleas were published that Spain raised in the annulment actions C-146/13 and C-147/13 aimed at the EU regulations for the Unitary Patent.

Spain and Italy had already sought annulment of the Council decision that allowed the enhanced cooperation to go through without involvement of Spain and Italy. That action was rejected by the Court of Justice. Spain then started annulment actions aimed directly at the regulations which were taken on the basis of that decision.

Up to now little was known about these two actions, but in the two new documents that are now public, a summary is given of the arguments. As expected, the argument is raised that the unitary patent is discriminatory against all non-official EPO languages. But other arguments were raised that I had not expected.

For example, one of the concerns of Spain is that the EPO will decide about the distribution of the renewal fee income.  In its view this cannot be delegated to the EPO. In the current regulation, renewal fees paid for unitary patents are distributed between the EPO and participating Member States (article 13, 1257/2012). Spain is not a participating Member State. This means that Spain is cut-out from the renewal fees completely.

The IPKat considers that for Spain the "chances of success are good". I don't quite share his view. When the Court of Justice had the opportunity to rule on the topic of the unitary patent, they didn't seem very concerned with the discriminatory argument. The new argument related to fees does not seem very strong either. Renewal fees after grant were never distributed to countries in which the patent is not valid. Moreover, renewal fees have always been distributed by the EPO before grant. Will the courts now force the EU to set up a new organization, just to collect renewal fees after grant?  I'm looking forward to the Courts judgment.

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