Moving Toward Unified European Patent Enforcement: Leaping Another Hurdle

Guest Post by Thomas Leonard of Kilburn & Strode LLP, London

The Advocate General for the CJEU has recommended Spain’s challenge to the Unitary Patent be thrown out.  Although not legally binding, it gives a good indication of what the Court will decide and brings the Unitary Patent closer than ever.  The most optimistic projections for implementation are 2016.


The Court of Justice of the European Union (CJEU) has issued a press release detailing the Advocate General’s opinion in related cases C-146/13 and C-147/13 brought by Spain against the European Parliament and the Council of the European Union.

Spain had challenged the Parliament and Council decisions to proceed with implementing the Unitary Patent package without the full agreement of all member states of the EU.  Spain complained the choice of English, French and German was discriminatory against states having different official languages.  Spain also argued the implementation and use of “enhanced cooperation”, which avoids the need for a unanimous decision on the matter among the member states, was illegal.

The AG has, however, recommended that the Court dismiss Spain’s actions, reasoning the establishment of a Unitary Patent was good for harmonisation across the EU single market:

Spain’s actions against the European regulations implementing enhanced cooperation in the area of the creation of unitary patent protection must be dismissed.  The unitary protection conferred provides a genuine benefit in terms of uniformity and integration, whilst the choice of languages reduces translation costs considerably and safeguards better the principle of legal certainty

The AG also noted that the grant of Unitary Patents would be governed by the European Patent Convention, which has been in force since 1973.

The AG reaches this Opinion despite apparently noting that non EN/FR/DE language countries would be discriminated against.  Some sacrifices are clearly worth the “guarantees” the Unitary Patent will provide.

The Opinion is not legally binding.  Instead we must wait for the judgment of the court.  Nevertheless, the Court in most cases agrees with the Opinion, and so it gives us a good indication of what the Court will decide.

Meanwhile, Austria, Belgium, Denmark, France and Sweden have ratified the Agreement on the Unified Patent Court.  The Agreement will come into force once 13 states, including France, Germany and the UK, have ratified it.

12 thoughts on “Moving Toward Unified European Patent Enforcement: Leaping Another Hurdle

  1. 6

    My turn for a reply caught in the filter – one retry does not clear it, and I cannot see the problem word…

  2. 5

    OT, but an interesting note on how blogs are sometimes “intentionally pointed and saucy” ->

    Google an article in The American Lawyer titled Jones Day Is Not Amused.

  3. 3

    Why don’t we just tell it like it is: the problem is language. Spain might try negotiating with all Spanish-speaking nations a unified patent. Now that would be something.

    Ditto England. What if we had a patent that was good in every English-speaking country in the world?

    Of course, countries like Holland would have a choice. Stick with the EU, go with England or go with Spain. I think I know what their choice would be. Ditto Germany.

    But just to be ornery, France might go with Spain.

  4. 2

    This conflict shows one of the major problems with the EU. Each country has different patent strategies and want to go their own way. Spanish inventors are going to have a tough time getting protection, while French and English patentees will be able to go into Spain without having the trouble of translating their patent.

    Of course the CJEU doesn’t care about Spain. Germany or France, sure, but not Spain.

    For those who want to harmonize US patent law, let this be a warning.

    1. 1.1

      Personally, I think all the comment threads on all of the posts have become like this. I find maybe five percent (at most — perhaps this should be one percent) of the posts have something interesting, and every once in a great while, I’ll learn something. Most posts, however, seem to devolve into petty bickering. There are entrenched camps here; it’s like watching a “debate” between ultra conservatives and ultra liberals, each of which espouses their opinions and completely ignores the opinions of the others.

      A button to ignore certain posters would be nice, as would a button to see what the latest posts were.

    2. 1.2

      You’re right Nick – mea culpa.

      I resolve to dial back the snark (but still post the interesting and thoughtful points, ever hoping for discussion on the merits).

      1. 1.2.1

        I was hoping to finish our discussion, but my response has been stuck in the mod filter for 24 hours. So I am going to repost it here. And it is entirely relevant to this thread because . . . because . . .

        Oh, it will be a model example of discourse!

        (Also, we could talk about the divergence of American patents from England.) Anyways, my post back on the other thread was…

        1) I do agree that a distrust of equitable courts played a role in the unavailability of patent rights (although who is to say that part of that distrust is because of the enforcement of patents in England?), but that doesn’t refute my argument. Your contention that, “our founding fathers desired full alienability of the property that is the patent right” cannot be right when the founding fathers didn’t allow equity. As you say, “the sanction that most closely resembles the patent right itself [is an] injunction.” Injunctions were not allowed to patentees by the founding fathers, and therefore they didn’t desire the full alienability of that right.
        (Also, Thomas Jefferson (and those in his party) disliked patents. In one of Walterscheid’s books, he wrote that monopolies “were the bugaboo” for Jefferson and the Republicans. If you want me to find the actual citation, I can.)
        2) I am not being facetious here, but what do you mean by “merger of equity and law”? The Constitution “merged” the two courts in a sense, but that was to prevent a dual judicial system as they have in England because the Court of Chancery (the equity court) was too close to the Crown and would battle or cancel out the common law courts.


          Thanks J.

          While I do appreciate your efforts and looking back at history (always good to note history), here I think you have fixated on a distinction that does not make a difference.

          You seemingly jump to some degree of “unavailability of patent rights” as a given premise, where no such premise exists in US jurisprudence. The plain point of the matter is that our founding fathers DID allow suits in equity on patent matters. Injunctions were allowed. I do not know why you think otherwise.

          Whether or not Jefferson “disliked patents” is a non sequitur, and his personal feelings should not be allowed to confuse the legal discussion. Jefferson, while being an important man, was still, just a man, and was not Dic ta tor of Patent Law.

          As to 2), there are plenty of history books that can better describe the coming together of the courts of law and equity, and this blog is hardly the place for that (and such does not affect the points under discussion here)


            Sadly J, the “oops my position is totally wrecked by your counterpoint offered for discussion so I will just disappear” is not a “model example of discourse!

            Running away is not a great model.

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