Wednesday, 19 November 2014

Opinions in legal challenges against the unitary patent available

The Advocate General has delivered opinions in Spain's two pending legal challenges against the unitary patent. 

The unitary patent is built on three main pillars: An agreement that creates a new judiciary to decide on infringement and validity for the whole of the EU. This agreement was agreed outside the EU, i.e., it is not an EU regulation.  Next there are changes in the regulations to the European Patent Convention so that the European Patent Office will grant unitary patents. Finally, there are two EU regulations that ensure that unitary patents have the same scope and effect in all EU member state.

This case is targeted against the last pillar. Spain wants to have these last two regulations, regulations 1257/2012 and 1260/2012, invalidated.

When a state brings a case to have a regulation invalidated, an Advocate General presents his opinion on the matter before the judges give their ruling. The Advocate General's opinion is not binding on the court. In both these cases judgment will be passed later. Often, though not always, the opinion of the Advocate General is followed though.  The opinions can be found here:  C-146/13 for regulation 1257/2012, and  C147-13 for regulation 1260/2012. A large number of translations are provided of these French texts, however at present I do not find an English translation.

Spain has offered 7 and 5 reasons respectively as to why the two regulations should be invalidated. In its two opinions the Advocate General considers each reason in turn and concludes that none of them are decisive. Most of the complaints seem rather formal in nature; arguing that the EU did not have the authority to make this regulation or that the regulation violates EU law. The arguments against 1260/2012 include the complaint that Spain is discriminated against on the basis of their language.

According to Spain, by endorsing the EPO patent system, the EU favors the official languages of the EPO, i.e. English, German and French. Anyone who has a different native language, say Spanish, is at a disadvantage when trying to obtain patent protection.

The Attorney General agrees with this point:

39.      Il ne fait aucun doute ici que les personnes qui ne connaissent pas les langues officielles de l’OEB sont discriminées et qu’un traitement différencié a ainsi été opéré par le législateur de l’Union.

Which I translate as:

There is no doubt here that people who do not know the official languages of the EPO are discriminated against and that the legislature of the Union has thus treated them differently.

Nevertheless, this should not lead to invalidation. The Attorney General notes that there is no absolute right using your own language in all circumstances. Furthermore, given the goal of reducing the costs of acquiring EU wide patent protection at low costs, the EU had no choice but to reduce the number of languages. In any case, according to the Attorney General, there can be no doubt that all researchers understand German, English, and French since the majority of scientific publications are in this language any way.

So, as far as the Attorney General is concerned there is no need to invalidate either one of these two regulations, so that the unitary patent can remain on track. Judgment is expected in 2015.

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