Advocates General say preliminary 'non' to a pan-European Patents Court

Abstract

The article responds to the opinion of the Advocates General (AGs) on the proposed agreement for the European and European Union Patents Court (EEUPC) and its compatibility with EU treaties. It is the contention of the author that aspects of the AGs’ opinion provide fundamental challenges to the viability of the EEUPC; and should the Court of Justice of the European Union (CJEU) be in agreement, the project may be declared moribund. The lack of an independent judicial remedy against the European Patent Office (EPO) and the failure of the draft agreement to apply fully, and observe the primacy of, EU law are considered surmountable. The article suggests that extending the remit of the EEUPC and adapting the language of the agreement to make clear that proper account will be taken of all EU law would suffice. The effect that the proposed language regime has on the rights of defendants, however, is identified as potentially intractable. The author ultimately concludes that the required unanimity is unlikely to be found in the absence of broader agreement on how the EU will deal with the language problem in its day-to-day operations. The second issue identified as potentially insurmountable is the role of the CJEU as anything more than a reference court. While the AGs envisage a greater role for the CJEU than that envisaged by the draft agreement, the author contends that the involvement of the CJEU to any greater extent than contemplated in the existing draft agreement could be a deal-breaker.