Wednesday, 6 May 2015

CJEU rejects Spains objections against unitary patent and unified patent court

The Court of Justice of the European Union has issued its decisions on Spain's legal challenges against the unitary patent. The two decisions can be found here C-146/13 and here C-147/13.

The decisions of the court do not come as a total surprise since the same court denied earlier challenges by Spain and Italy. Moreover, the advocate general had already opined to deny the objections.

One of the important objections is that the Spanish language is discriminated against. The official languages of the EPO are English, German, and French. An inventor who does not master one of these languages clearly is at a disadvantage. The advocate general had acknowledged this point in its opinion.

The court is careful to avoid the word 'discriminate' but acknowledges a 'difference in treatment on the grounds of language'. Nevertheless, the court rules that this different treatment is appropriate to serve the goal of cost reduction.

Recitals 4 and 5 of the contested regulation add that, in accordance with the decision on enhanced cooperation, the translation arrangements for European patents with unitary effect should be simple and cost-effective. They should moreover ensure legal certainty, stimulate innovation and benefit, in particular, small and medium-sized enterprises, so as to make access to the EPUE and to the patent system as a whole easier, less costly and legally secure. It follows from the above that the aim of the contested regulation is to facilitate access to patent protection, particularly for small and medium-sized enterprises.
The legitimacy of such an objective cannot be denied. One of the choices facing an inventor when planning to obtain protection for his invention by the grant of a patent concerns the territorial scope of the desired protection, which will be decided after an overall assessment of the advantages and drawbacks of each option, which includes complex economic evaluations of the commercial interest of having protection in the various States compared with the sum of the costs entailed in obtaining the grant of a patent in those States, including translation costs
Most of the other objections question whether the European Union has the power to the implement the unitary patent, especially given the rather convoluted legal construction that was used. The EU has issued two directive which only enter into force if a unified patent court is set up (which is not an EU institute) so that a patent issued by the EPO (also not an EU institute) would be valid throughout the EU (except that is doesn't--at least Spain is not in). It is a valid concern if this construction passes mustard.

Also the objections of this nature are rejected. For example, the court notes that

Neither does the creation of the Unified Patent Court undermine any competence of the European Union. First of all, the power to create a unified patent court and to determine the scope of its powers continues to fall to the Member States and has not been entrusted exclusively to the European Union. Next, the contested regulation expressly requires Member States to grant the Unified Patent Court exclusive jurisdiction.

This is the second time Spain has tried to invalidate the unitary patent through the Court of Justice: the first time was together with Italy. This second time it was alone, as Italy appears to have warmed a bit towards the unitary patent. In fact, as we blogged earlier, Italy may even join the system.

At the moment no further legal objections are pending with the court of justice. The unitary system continues to be postponed until the sufficient ratifications are in. Currently 6 out of 13 required have ratified, with the Netherlands recently announcing it started the ratification process. 


  1. The Press Release of the CJEU nicely summarizes their decisions, so can be used as "Executive Summary" for those that want to read more than our blog post, but do not want to read the whole decisions:

  2. The EPO also published a News message "EPO welcomes CJEU decisions which clear the way for the unitary patent" (5 may 2015):


    The EPO welcomed the decisions of the Court of Justice of the European Union (CJEU) to dismiss the legal challenges against the unitary patent package.

    It confirms that the European patent with unitary effect will be based on the procedure for granting

    The EPO is confident that all necessary steps, including a decision on the level of the renewal fees, will be met in the coming months.

    EPO President Benoît Battistelli emphasised the high significance of the decisions: “With its rulings the Court has created the necessary legal certainty for participating EU member states as well as for users of the European patent system, and, after more than 40 years, paves the way towards truly uniform patent protection in Europe.”

    The EPO also expressed its hope that the judgments give new impetus to the process of ratification and implementation of the Unified Patent Court (UPC) Agreement, and that the unitary patent package can come into operation in the course of 2016.