The EU executive’s draft on the European and Community Patents Court requires substantial changes, according to the advocates-general of the Court of Justice, who gave their answer in July to the Council’s June request for an opinion (Opinion 01/09). The weaknesses are nonetheless not a threat to the draft international agreement between the EU and the other states participating in the European patent system (Norway and Switzerland, among others) of 23 March 2009. The opinion adds grist to the mill of the agreement’s detractors, first among them Spain and the Council. The non-public text is not binding, however, but merely an opinion of members of the court, the advocates-general, who are not judges and whose role is to review case law on matters submitted to the EU court and to suggest a reasoned solution to the judges. It is without prejudice to what the judges may decide. However, the advocates-general’ text highlights the weaknesses of the Commission’s proposal, some of which were raised by the parties in their oral arguments to the court, on 20 May (see Europolitics3982).

The creation of a unified patent court would put an end to the existing system, which comprises a single procedure for the issue of patents by the European Patent Office (EPO) but which gives national courts jurisdiction for cases on counterfeiting or the validity of patents. A single conflict can consequently be handled differently on the basis of diverse national laws and procedures. Challenging a patent involves several procedures, resulting in multiple litigation and considerable costs for the parties, estimated at between €148 million and €289 million a year in a study by Dietmar Harhoff’ ⁽¹⁾Furthermore, certain companies conduct strategies that take advantage of the inconsistencies in decisions by different courts to defend their interests, which is extremely damaging to legal certainty. The draft agreement proposes a structure consisting of a court of first instance, which includes a central division and local and regional divisions, and a court of appeal. For close to 30 years, companies, agents and specialised lawyers have been calling for the creation of a unique jurisdiction. However, this jurisdiction raises a number of questions in terms of constitutional law and procedural law. Is the mechanism set up by the agreement – particularly for reference for a preliminary ruling – in conformity with Union law? For instance, how could companies accused of violating their competitors’ patents prove their good faith? How are the rights of the defence protected? Who handles translations related to the litigation process?

The opinion of the advocates-general states that “the guarantees contained in the draft agreement for ensuring full application and respect of the primacy of European Union law […] are insufficient” since there is no clear statement that the court must apply EU law and respect case law and that the judges must have solid training in this area. The experts also note that the draft does not provide sufficient remedies in case of breach of EU law by the future court. They do not take a position on the solutions proposed by certain states during the oral arguments, but state that proposals could be made to this effect. The advocates-general also recommend an “appeal in the interest of the law, open to the states, the Commission or the EPO rather than to scrutiny by the Court of Justice, which would needlessly prolong the procedure,” notes Pierre Véron, a lawyer specialised in industrial property litigation. He finds more generally that the comments of the advocates-general “do not condemn the draft as a whole, which admittedly requires certain adaptations”. He places himself “in the optimists’ camp,” like Vincent Tilman, in charge of this issue for Eurochambres, the lobby of chambers of commerce and industry. “This text is not a death sentence. It simply brings to light the weaknesses that can be addressed,” he commented. “We’ll have to wait for the court’s position” this autumn.

Europoliticswill advise its readers as soon as the date is known.

The text is available at www.europolitics.info > Search = 277759

⁽¹⁾ ‘Economic cost-benefit analysis of a unified and integrated European patent litigation system’, Prof. Dietmar Harhoff, Ph.D., Ludwig-Maximilians-University, Munich. ec.europa.eu/internal_market/indprop/docs/patent/studies/litigation_system_en.pdf.