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.