Court of Justice upholds the Decision authorizing enhanced cooperation to create the single European patent

This morning, 16 April 2013, the Court of Justice dismissed the actions brought by Spain and Italy against the Council Decision of 10 March 2011 authorizing enhanced cooperation in the area of the creation of unitary patent protection, rejecting all the appellants' pleas. The Court has followed Advocate General Bot's opinion to the letter four months after delivery.

The Decision of 10 March 2011 paved the way for adoption of Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection and of Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements. At the end of March of this year Spain launched challenges to both Regulations (Cases C-146/13 and C-147/13), so the final decision in this now long, drawn out chapter will have to wait until early 2015.

The judgment of 16 April 2013 is significant for a number of reasons, for instance, because it

a) is the Court's first interpretation of the "enhanced cooperation" provided for under Article 20 of the Treaty on European Union and Articles 326 to 334 of the Treaty on the Functioning of the European Union, tying it in not so much with integration as with surmounting the requirement of unanimity.

b) provides that creating European intellectual and industrial property rights falls within the framework of the internal market rather than coming under competition rules.

c) holds that "falling within non-exclusive competences" is a necessary and sufficient condition for enhanced cooperation.

d) accords the Council broad discretion in deciding when an issue is a "last resort" within the meaning of Article 20 of the Treaty on European Union.

e) reiterates that acts by the institutions are only misuse of power where there is objective, relevant, and consistent evidence that they have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case.

f) anticipating a very interesting point bearing on the actions that have recently been filed, considers that application of Article 118 of the Treaty on Functioning of the European Union probably clashes with that of Article 142 the Convention on the Grant of European Patents to the extent that the focus of the former is the European Union and that of the latter the Member States.

g) endorses an "incremental" model of integration, with partial integration being better than none at all.

h) posits that enhanced cooperation being possible in this context, creation of European intellectual and industrial property rights that do not encompass the entire territory of the Union, instead taking in only a certain number of Member States while leaving others out, should also be possible and that this is neither detrimental to the internal market nor a distortion of competition.

i) concludes that the competences, rights, and obligations of Spain and Italy have not been infringed in the course of this process.

Author: Manuel Desantes

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Twenty-four States sign Agreement on a Unified Patent Court in Brussels

The signing ceremony for the International Agreement on a Unified Patent Court took place at 3:15 p.m. on 19 February 2013. The scene in the Council Room at the Justus Lipsius Building in Brussels was a strange one: all the Member States of the European Union present except Spain. Twenty-four of them – all but Bulgaria and Poland, present but not signatories – had just concluded an international agreement to establish a Unified Patent Court outside the institutional framework of the EU. There were just three authentic texts, in German, French, and English, all together in a single volume. Starting with Belgium, one by one they affixed their signatures in the presence of the cameras under the Irish Presidency, with Commissioner Barnier as Master of Ceremonies. Spain's absence had been announced, as had Italy's presence, Italy having decided to sign the Agreement even though it had not joined the enhanced cooperation procedure that had ushered in unitary protection for EU patents for the other 25 EU Member States. Thus, in Italy, the Agreement will apply only to traditional European patents validated in that country.

The countdown to entry into force of the Agreement now begins. This will also imply application of the two Regulations adopted in December of last year (Regulation (EU) No. 1257/2012 ofthe European Parliament and of the Council of 17 December 2012 implementingenhanced cooperation in the area of the creation of unitary patent protection and Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementingenhanced cooperation in the area of the creation of unitary patent protectionwith regard to the applicable translation arrangements).

The Agreement will enter into force on the first day of the fourth month after deposit of the 13th instrument of ratification or accession by the States, provided that these 13 States include France, Germany, and the United Kingdom, unless that date falls in 2013, in which case the Agreement will enter into force on 1 January 2014. Heavy pressure will doubtless be brought to bear on all signatory States to deposit their instruments of ratification by 1 November 2013, which would result in the Agreement's entering into force on 1 April 2014.

The Friends of the Presidency Group (Patents) is to meet in Brussels on Friday, 27 February, with a packed agenda including a review of each State's plans for ratification and an initial exchange of views on setting up the Administrative, Budget, and Advisory Committees.

The ceremony concluded with a family photo – Commissioner Barnier's priceless comment in front of the cameras, "Do you allow the Commissioner to be in the picture?" – and a speech by the President of the Council underlining "this important step towards a new architecture within the European Union". No mention of Spain's absence was made.

Author: Manuel Desantes

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Unitary Patent latest news

On 19 November the European Commission, European Council, and European Parliament's Legal Affairs Committee reached a tentative agreement on the proposed creation of the unitary EU patent and Unified Patent Court. The final vote by the European Parliament on the legislation laying the groundwork for this new legal system is to be held on 11 December.

Spain and Italy are not taking part in this EU initiative, claiming that it discriminates against their languages. Also on 11 December the Advocate General is to make public his opinion in the appeals lodged by Spain and Italy against Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection.

Author: Enrique Armijo Chávarri

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European Parliament and Council at loggerheads over unitary European patent. Next chapter: September 2012

On 10 July 2012 there was lively debate on the Legal Affairs Committee of the European Parliament over the suggestion made by the Council on 29 June that articles 6 to 8 of the “Proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection” be deleted. The implementation of that suggestion would entail denying the European Court of Justice the capacity to interpret uniformly the core of patent law, specifically, the right to prevent the direct or indirect use of the invention and the limits of patent protection. The majority of the MEPs came out strongly against the deletion, maintaining that it would constitute a breach of ordinary legislative procedure, and it was thus decided that the matter should be referred back to the Commission and the Legal Service of the Parliament. More news is expected in September.

Following the mess resulting from Opinion 1/09 of the Court of Justice in March 2011, on 26 May 2011 the Commission proposed that the work be restructured in the form of three legal instruments within a single package to be adopted by the 25 Member States participating in the enhanced cooperation procedure, Spain and Italy having opted out, those instruments being a regulation on the creation of unitary patent protection, another regulation confined to translation requirements, and an international agreement for the creation of a unified litigation system with a unified patent court.

On 5 December 2011 the European Parliament and the Council struck a political deal which left just one question in the air, namely, that of where the new court should be located. As the Council had announced that a solution could be forthcoming towards the end of June 2012, Parliament decided to wait and to put the political deal to the vote at first reading in the plenary session to be held on 4 July. On 29 June the Council announced that a “Belgian style” agreement had indeed been reached and that the seat of the court would thus be in Paris while there would be specialized chambers in London and Munich, but that this would entail the deletion of articles 6 to 8 of the basic Regulation. British, German and French professionals had long been calling for the removal of those provisions, on the ground that the Court of Justice is not a specialized body and that its intervention will only give rise to greater cost and delay in the handling of infringement and nullity actions, and their views were echoed in a report by the UK Parliament published on 3 May 2012.

On 2 July the European Parliament decided not to put the package to the vote on 4 July and instead to convene the Legal Affairs Committee for 10 July. We now know the outcome of the meeting of that committee, although we cannot yet gauge its implications. To liken the situation to that of players in the time-honoured board game known as the Game of the Goose, we might have stumbled into the maze on square 42 and therefore have to go back to square 30 or, worse still, have fallen into the well on square 31. In the first scenario months will have been lost; in the second we may have to wait another three years for someone to come along and rescue the project. It is, at all events, every day more evident that, after forty years of negotiations, on this front we are witnessing a watering down of the European construction process and a waning of the belief that industrial property is one of the key elements for the consolidation of the internal market.

Author: Manuel Desantes

Visit our website: http://www.elzaburu.es/