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7 May 2015
Arguably the last major hurdle to the introduction of the Unitary Patent was overcome Tuesday as the Court of Justice of the European Union (CJEU) dismissed the two challenges presented by Spain regarding a lack of compliance with EU law.
Back in December 2012, Spain challenged the two Regulations which aim to govern the unitary patent: the Unitary Patent Regulation (UPR); and the Regulation on translations (RoT). With regard to the UPR, the Spanish argued that, among other things, it infringes the Treaty on the Functioning of the European Union (TFEU) in that it does not guarantee uniform protection and it does not allow for individual member states to set renewal fees. Further, with regard to the RoT, they argued that the requirement for translations into only English, French and German causes a detriment to members of the Regulation whose mother tongue is not one of those languages. The complete list of challenges brought by Spain can be found in cases C-146/13 (Unitary Patent Regulation challenges) and C-147/13 (Regulation on translations challenges).
The CJEU responded to both challenges yesterday, dismissing all objections raised by the Spanish. Specifically, regarding uniform protection, the CJEU stated that unitary patent protection is “apt to prevent divergences in terms of patent protection in the participating Member States and, accordingly, provides uniform protection within the meaning of the first paragraph of Article 118 TFEU“.
Further, with regard to renewal fees, the CJEU stated that “[A]lthough Article 9(1)(e) of the contested regulation provides that participating Member States are to give the EPO the task of ‘collect[ing] and administer[ing] renewal fees for [EPUEs]’ (European Patents with Unitary Effect), there is nothing in that regulation stating that the amount of those renewal fees should be uniform for all participating Member States.”
Finally, in response to translations, the CJEU responded that “the restriction of the number of languages used in relation to the EPUE pursues a legitimate objective, namely that costs should be reasonable“, going on to say that “the language arrangements established by the contested regulation are capable of making access to the EPUE and the patent system as a whole easier, less costly and legally more secure“.
The dismissal of the Spanish challenges by the CJEU looks to have removed the last major obstacles to the introduction of the unitary patent. All that is required now is the further ratification of the Agreement on a Unified Patent Court by seven more countries (including the UK and Germany) for the unitary patent to come into effect. It is expected that, subsequent to this decision by the CJEU, the required number of ratifications will follow shortly. An up to date list of ratifications can be found here.
Electronics, Computing & Physics group
If you require further information on anything covered in this briefing, please contact James Mitchell (email@example.com; +44 20 7940 3600) or your usual contact at the firm.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP, May 2015