All material subject to strictly enforced copyright laws. © 2022 Managing IP is part of the Euromoney Institutional Investor PLC group.

Full steam ahead for Unitary Patent and UPC

CJEU judges

The Court of Justice of the EU has emphatically dismissed two challenges to the Regulations establishing the Unitary Patent filed by the Spanish government

CJEU judges

The Court’s two judgments, published today, are C-146/13 and C-147/13. They were both given by a Grand Panel of 13 judges.

The former deals with Spain’s application to annul EU Regulation 1257/2012, which implements enhanced cooperation to create a Unitary Patent, while the latter covers EU Regulation 1260/2012, which concerns the applicable translation arrangements (specifically a language regime based on English, French and German).

Spain is one of the few EU member states not participating in the Unitary Patent and Unified Patent Court system, and this is the second time it has challenged the legitimacy of the proposals at the CJEU.

The Court dismissed all of Spain’s seven pleas in case C-146/13 and all five pleas in C-147/13.

Legal basis of Unitary Patent

Spain’s arguments against Regulation 1257/2012 were essentially that it infringed the values of the rule of law, lacked legal basis, was a misuse of powers, infringed Article 291(2) TFEU or the principles stated in the 1958 case Meroni v High Authority, infringed the same principles by delegating administrative tasks to the EPO and infringed “the principles of autonomy and uniform application of EU law”.

Rejecting all these pleas, the Court said “the unitary patent protection … is apt to prevent divergences in terms of patent protection in the participating Member States and, accordingly, provides uniform protection within the meaning of the first paragraph of Article 118 TFEU”.

Regarding the EPO tasks, it said: “Given that … the EU legislature did not delegate any implementing powers which are exclusively its own under EU law to the participating Member States or the EPO, the principles laid down by the Court in the judgment in Meroni v High Authority … cannot apply.”

Translation arrangements

"[T]he language arrangements established by the contested regulation are capable of making access to the EPUE and the patent system as a whole easier, less costly and legally more secure."

Spain argued that Regulation 1260/2012 infringed the principle of non-discrimination on the ground of language, infringed the Meroni principles, lacked legal basis, infringed the principle of legal certainty and infringed the principle of the autonomy of EU law.

Rejecting all these please, the Court noted that the rules of the existing European patent system “affect adversely the capacity to innovate and compete of European businesses, particularly small and medium-sized enterprises” and that “the language arrangements established by the contested regulation are capable of making access to the EPUE and the patent system as a whole easier, less costly and legally more secure”.

It said “the arrangement established by the contested regulation does indeed make it possible to facilitate access to patent protection by reducing the costs associated with translation requirements” and maintains “the necessary balance” between various interests.

Therefore, the decision to choose English, French and German “is appropriate and proportionate to the legitimate objective pursued by that regulation”.

The judgments are in line with the Advocate General’s opinion, published in November last year. A press release summarising them is also available.

Proponents of the Unitary Patent system, and the Unified Patent Court which will exist with it, will be relieved that the Court has given a clear and unambiguous judgment. Plans for the system can now proceed unchanged. In a tweet, the EPO said President Battistelli “pleased last legal obstacle to UPP-UPC has gone”.

However, some opponents may yet seek to file further challenges. One possibility floated is a challenge at the European Court of Human Rights, based on Protocol 12 of the European Convention on Human Rights, regarding prohibition of discrimination. This is outside the jurisdiction of the CJEU.

Read all Managing IP’s coverage of the Unitary Patent and UPC on our dedicated page.

More from across our site

The patent office report found that stakeholders were still divided over subject matter eligibility but broadly wanted clarity
The UKIPO published the results of its consultation on AI and IP today, June 28, and plans to shake up the rules on copyright and data
IP consultancy Brandit is the first European intellectual property firm to announce plans for an augmented-reality presence
Patent owners and implementers weigh in on the PTAB Reform Act – its provisions, what it missed and its likelihood of success
Counsel from Blackbird, Unified Patents, two other companies and a law firm debate what new ways to avoid Fintiv mean for petitioners and patent owners
Counsel at six companies say experience, technical expertise and persuasion are some of the most important skills at the board
Nokia beats Oppo in Germany; Australia and EPO to continue PPH; Ed Sheeran nets nearly £1m in legal fees; Google backs down in €500m French appeal
Brand owners say Amazon’s new anti-counterfeit team up is welcome but warn that such partnerships are often made on the e-commerce platform’s terms
12th annual awards announces winners
Counsel say the government's policy drop and the result of Philips v Thales at the ITC or Federal Circuit could change the power balance in SEP matters
We use cookies to provide a personalized site experience.
By continuing to use & browse the site you agree to our Privacy Policy.
I agree