On 16 April 2013, the Court of Justice of the European Union (“ECJ”) handed down its judgment in Joined Cases C-274/11 and 295/11 in which it dismissed the challenges brought by Spain and Italy to the other 25 Member States’ use of the “enhanced cooperation” procedure to create an EU-wide unitary patent system. In doing so, the ECJ effectively followed the Opinion given by Advocate General Bot (“AG Bot”) on 11 December 2012. While this is positive news for the EU-wide patent system, the ECJ’s judgment does not entirely resolve the situation, as a new legal challenge has been brought by Spain against the proposed unitary EU patent regime. In short, while there is light at the end of the tunnel, the unitary EU patent is still not yet in the full light of day.
On 10 March 2011, the Council of the European Union (“Council”) had authorised by decision the use of enhanced cooperation between 25 of the 27 EU Member States – Spain and Italy having refused to participate – with a view to creating unitary patent protection in the EU. Under Article 20 of the Treaty on European Union (“TEU”), enhanced cooperation can only be used by a subset of Member States as a last resort within the framework of the EU’s non-exclusive competences, when the objectives of that cooperation cannot be achieved by the EU as a whole.
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