Spanish claims against unitary patent system combatted

Published on: 16 December 2014
by Tomislav HADZIJA, Attorney at Law at Dennemeyer & Associates, Croatia

Spanish “Armada” sails through stormy weather as the Advocate General delivered his opinion on Spanish CJEU claims regarding European patent with unitary effect

On November 18, 2014 Advocate General Yves Bot delivered his opinion to dismiss the Spanish claims that challenge the legality of the unitary patent protection system.

As many of you already know, back in 2013 the Kingdom of Spain filed two legal actions before CJEU, namely C-146/13 disputing Council Regulation 1257/12 and C-147/13 against Council Regulation 1260/12.

The full text of the legal actions can be found on the CJEU (Curia) website at the following links:

To better understand Spain’s argument raised in the C-146/12, it is necessary to briefly touch upon the content of Council Regulation 1257/12 (on enhanced cooperation in the area of creation of the unitary patent protection system). It prescribes that European patents with unitary effect will have unitary protection in the territory of the participating Member States. Unitary protection of the patent is achieved by attributing unitary effect to European patents in the post-grant phase. Thus, it is expected that this unitary character of the patent will provide uniform protection and have equal effect in all participating Member States.

On the other hand, Spain wants to declare Council regulation 1257/12 legally non-existent and argues the following:

  • There is "breach of the values of the rule of law" as a regulation has been established on the basis of a right granted by the European Patent Office;
  • Lack of a legal basis for Regulation 1257/2012 in that it does not introduce measures guaranteeing the uniform protection;
  • Misuse of power through the use of enhanced cooperation for purposes other than those provided for in the Treaties;
  • Misapplication of the Meroni case law, in the regulation of the system for setting renewal fees and for determining the 'share of distribution' of those fees.
  • Misapplication of the Meroni case law, in the delegation to the EPO of administrative tasks relating to the European patent with unitary effect;
  • Breach of the principles of autonomy and uniformity, in regards to the rules governing the entry into force of Regulation 1257/2012.

Clearly not agreeing with the above, Advocate General delivered his opinion ultimately proposing that the CJEU should dismiss Spain’s legal actions.

In short, Advocate General responded to Spanish arguments by saying that the unitary patent protection provides a genuine benefit in terms of uniformity and integration, whilst the choice of languages will considerably reduce translation costs. In addition, ”the principle of legal certainty is undeniably better safeguarded when one language is authentic”. Also, Advocate General confirms the link between the unitary patent protection and the Unified Patent Court Agreement and concludes by saying that Signatory States are obliged by the principle of sincere cooperation to ratify the Unified Patent Court Agreement.

The whole opinion can be found on the CJEU (Curia) website (PDF).

As CJEU follows Advocate General’s opinion in almost 80% of cases, it is likely to expect that in the (near) future, presumably sometime in 2015, CJEU will follow the same reasoning when delivering its decision.

If Spain’s claims would be dismissed by the CJEU, there is no doubt that this would be a major step toward the creation of the unitary patent protection system and offer a clear green light to Signatory States to finalize their ratification processes (and a huge blow to Spanish ”Armada”).

As a final remark, the unitary patent will be available once 13 Member States including the UK, France and Germany have ratified the UPC agreement. So far, five Member States have ratified the UPC agreement.

The current status of the ratification process can be found on the European Commission website.

If you are interested to learn more about the European patent with unitary effect and the Unified Patent Court as well as new developments in this field, please contact the author at