Cheerleading Or Judging? The Cjeu Upholds The Eu's Unitary Patent System

Steve Peers

Two novel CJEU judgments (here as well as here) possess got today upheld the legality of the European Union rules on the unitary patent. To what extent are the Court's reasons convincing as well as coherent?

Background

The background to today’s rulings was summarised inward my previous weblog post, on the Advocate-General’s opinion. Suffice it to say that: the European Union has tried for decades to concur on patent rules, as well as the Treaty of Lisbon created a specific legal base of operations for the adoption of European Union intellectual belongings rules (Article 118 TFEU). The primary rules are to live on adopted past times the ordinary legislative physical care for (qualified bulk voting inward Council, articulation ability for the European Parliament), but the languages rules, which apply inward this instance to translations of the patent (or patent claims), must nevertheless live on agreed past times unanimity.

Since Member United States of America could non accomplish the required unanimity on the patent translation rules, most Member United States of America agreed to apply the physical care for of ‘enhanced cooperation’, ie adopting European Union legislation that applied to roughly Member States, but non others. This entailed a two-step procedure: authorisation of enhanced cooperation past times the Council (by a qualified bulk vote of all Member States), as well as and then the adoption of the legislation to implement enhanced cooperation, alongside only the participating Member United States of America voting. Espana as well as Italy challenged the initial say-so (adopted inward 2011) regarding patents, but the CJEU ruled against them inward 2013. The 2 Regulations implementing enhanced cooperation inward this surface area were adopted, inward the meantime, at the cease of 2012, concerning the substantive rules governing a ‘unitary patent’ as well as the language rules.  Spain (this fourth dimension without Italy) challenged these measures inward turn; those 2 challenges are the dependent area of today’s judgment.

The European Union legislation on this number is closely linked to 2 international treaties. First of all, the European Patent Convention, agreed inward 1973, which binds all European Union Member United States of America as well as a number of non-Member States, as well as which sets upward a legal framework for registering a patent inward a number of European countries, past times way of an application to the European Patent Office which it established. This results inward a ‘European patent’, but the legal championship concerned is non real uniform, but depends on the national police clit of each of the countries where the patent is registered. The hollo for of the European Union legislation is to create a shape of European patent that volition possess got uniform beingness inward all of the participating Member States, also reducing the costs of translation that would otherwise apply.

The mo treaty concerned is a treaty among Member United States of America creating a Unified Patent Court, inward club to trim back the costs of litigation concerning European patents as well as the planned unitary patent. (Although the CJEU had objected to aspects of these plans inward its Opinion 1/09, Member United States of America believe that they possess got addressed the Court’s concerns). That treaty volition come upward into forcefulness i time 13 Member States, including France, Deutschland as well as the UK, possess got ratified it. So far 6 Member United States of America have, including France. The application of the EU’s unitary patent police clit is dependent upon this treaty coming into force, as well as the unitary patents volition only live on valid inward Member United States of America which possess got ratified the treaty (all Member United States of America except Spain, Poland as well as Republic of Croatia possess got signed it; all Member United States of America except Spain, Italy as well as Republic of Croatia participate inward the Regulations).

The judgments

Spain’s legal arguments against the 2 European Union Regulations differed somewhat. As regards the primary Regulation, Espana argued that it was invalid because it created a unitary patent dependent upon the acts of the European Patent Office, whose acts are non dependent area to judicial review. Secondly, the Regulation did non create ‘uniform protection’ inside the pregnant of Article 118 TFEU. Thirdly, at that topographic point is a ‘misuse of power’, ie enhanced cooperation was used for a role other than the Treaties permit for. Next, the Regulation breached the rules concerning the conferral of implementing ability upon the Commission, because it gives ability to the Member United States of America to create upward one's hear on issues such as renewal fees.

As regards the languages Regulation, Espana argued that the special status of the French, English linguistic communication as well as High German languages laid out inward that Regulation was discriminatory. Also, it argues that at that topographic point is no legal ability for the European Union to regulate linguistic communication issues inward the lawsuit of a dispute, as the Regulation does, as well as that the Regulation violates the regulation of legal certainty.

In both cases, Espana argued that the rules on adopting implementing measures were invalid, since powers to implement European Union police clit were granted to a non-EU body, the European Patent Office. Also, it argued that making the application of the Regulations dependent upon the ratification of the treaty creating the unified patent courtroom breached the regulation of the autonomy of European Union law.

The CJEU has rejected all of these arguments. In its view, the primary Regulation doesn’t violate the dominion of law, since it only takes the shape of a ‘special agreement’ as provided for inward the EPC. Secondly, the Court said that Article 118 TFEU was the right legal base of operations for the legislation, since it established a organization of uniform protection for unitary patents. It did non affair that it referred to national police clit as regards roughly issues, since Article 118 does non require the European Union to fully harmonise the detail intellectual belongings right at issue, as well as at to the lowest degree this provided for to a greater extent than harmonisation than the EPC, which is inward number a packet of national patents. Thirdly, at that topographic point was no ‘misuse of power’, since the Regulation did non secretly aim at a role other than its purported end. Next, it was acceptable for the Regulation to confer upon Member United States of America the ability (acting via their participation inward the EPO) to implement its rules, since the European Union Treaties only require implementing powers to live on conferred upon the weather where ‘uniform’ implementing measures were required. Nor did the Regulation violate the ‘Meroni principle’ of an impermissible delegation of discretionary powers. Finally, the Castilian government’s challenges relating to the unified patent courtroom treaty were inadmissible, as well as its challenge to the rules on the timing of the application of the Regulation were rejected on the merits. The Court ruled that the European Union is costless to defer application of European Union legislation until preparatory steps possess got been taken, as well as that limiting the application of the Regulation to those Member United States of America which possess got ratified the unified patent courtroom treaty was acceptable, since it only affected a few provisions of the Regulation.

As for the languages Regulation, the CJEU ruled that spell it was discriminatory inward regulation to confine translations to 3 languages only, at that topographic point was no dominion of European Union police clit that all European Union languages possess got to live on as valid as regards all issues linked to European Union law. The discrimination as regards languages could live on justified past times the postulate for reducing costs as well as thus encouraging innovation. It was appropriate to work the 3 languages already used past times the EPO, inward low-cal of the link betwixt the EPO as well as the European Union system, as well as the European Union police clit was non disproportionate, inward low-cal of the rules inward the Regulation designed to address the concerns of patent holders using other languages. The Court also ruled that the entire Regulation brutal inside the range of the ‘legal base’ relating to languages issues, as well as that at that topographic point was no breach of the regulation of legal certainty.

Comments

The CJEU did non actually dominion on whatsoever of the many interesting questions virtually the substantive grounds governing the implementation of enhanced cooperation, only because Espana did non elevate them. However, the declaration relating to discrimination touches indirectly upon those issues.

Parts of the Court’s ruling are convincing, especially as regards the possibility of delaying the entry into forcefulness of European Union laws to hold off for other developments, the ‘legal certainty’ issues relating to the languages Regulation as well as the legal base of operations number regarding the same Regulation. However, alongside respect, roughly of its reasoning was only partially convincing. The Court’s instance for using a express number of languages is sensible only if i accepts its underlying premise that the unitary patent organization volition possess got the overall impact of enhancing innovation. Many critics of the patent organization struggle that it does the reverse, past times giving an overly lengthy monopoly to the patent-holders. To live on fair, though, it would live on also much to human face the Court to teach inward into this argument, especially since Espana did non elevate it.

Similarly, the Court’s declaration that the Meroni regulation was non infringed is sensible plenty – if i accepts its carve upward determination that the primary Regulation validly conferred implementing powers upon Member States. But that determination brings us to the chain of contradictions inward the Court’s reasoning. For the powers that Member United States of America volition exercise when implementing the unitary patent Regulations volition not final result inward divergent approaches inward each country’s private national laws, as is ordinarily the instance when Member United States of America are left alongside the powers to implement European Union police clit inward practice. Rather, they must exercise their powers collectively, to adopt uniform rules regarding the unitary patent, inside the context of the EPO. Indeed, the Court’s other conclusions insist upon the uniform nature of that patent. This points us inexorably toward the determination that uniform rules to implement the Regulations were necessary – which way (according to the Treaties) that such powers ought to possess got been conferred upon the Commission.

For the same reasons, the Court’s dismissal of the declaration against limiting the application of the primary Regulation to those Member United States of America which possess got ratified the unified patent courtroom treaty is unconvincing. The Court is indeed right to say that this limitation affects only a few provisions of the Regulation – but these are the provisions relating to the uniform nature of the patent, which the Court relied on so heavily when it defended the legal base of operations of this Regulation.

This stress on the uniform nature of the patent also contradicts the begin business office of the Court’s reasoning on the primary Regulation, which deferred to the EPC organization as well as argued rather that European Union police clit did not modify that organization at all. The Court did non adequately answer the declaration that the European Union lacked ability to create this, as well as alone side-stepped the of import declaration that the EPO should live on dependent area to judicial review. This contrasts alongside the Court’s famous insistence inward Kadi upon the postulate for adequate review of international bodies whose acts impact upon the European Union legal order.

In the Court’s view, the unitary patent organization is valid because it largely refers dorsum to the EPO system, as well as also because it does not. With respect, the Court is trying to possess got its cake as well as consume it too. H5N1 ameliorate declaration would possess got been to comprehend the hybrid nature of the organization rather than run away from it. After all, the drafters of the Treaty of Lisbon were good aware of the beingness of the EPO. In low-cal of the discussions on a possible European Union patent which were underway when that Treaty’s predecessor (the Constitutional Treaty) was drawn up, a hybrid solution based on a combination of the EPO as well as European Union police clit was presumably just what the Treaty drafters were aiming to facilitate when they added Article 118 TFEU to the Treaties.  

Whether the Treaty drafters ought to possess got intended this is, of course, roughly other question. But the best house for a debate virtually the cardinal merits of intellectual belongings protection is the political arena, non the courts. While today’s judgments confirm the legal validity of the EU’s unitary patent system, as well as enable it to become forrad inward the close futurity (after several to a greater extent than ratifications of the patent courtroom treaty), their circular as well as contradictory reasoning suggests that the Court only wanted to approve the patent organization regardless of the legal arguments against. But this approach to judicial analysis could ultimately hinder, rather than bolster, the broader legitimacy of the unitary patent system.

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