Following on from their previous challenge to the adoption of the unitary patent system on the basis of the concept of enhanced cooperation, and as eventually dismissed by the Court of Justice of the European Union (CJEU), Spain and has launched further challenges; this time directed to Regulations underpinning the Unitary Patent System.
The further challenges have been directed at the unitary patent Regulation, and the translation Regulation.
The unitary patent Regulation is objected to as:
• Having been established on the basis of a right granted by the EPO -- being a body not subject to judicial review;
• Lacking legal basis due to the absence of measures guaranteeing uniform protection, and not being supported by an act of the European Union;
• Representing a misuse of power through the use of enhanced cooperation;
• An infringement of the provisions of the TFEU, and being contrary to the Meroni case-law, concerning the delegation of powers within the EU, in relation to the renewal fee provisions;
• A misapplication of the Meroni case-law in relation to the delegation of powers concerning administrative tasks to the EPO.
Turning to the translation Regulation, this is objected to as:
• Infringing the principle of non-discrimination due to the potential detriment of non-English, French or German speaking persons;
• Lacking legal basis due to its manner of regulating translation requirements in the event of a dispute;
• Infringing the principle of legal certainty;
• Misapplying of the Maroni case-law in delegating aspects of compensation and translation to the EPO;
• Infringing the principle of the autonomy of the EU due to the Regulation's introduction being dependent upon entry into force of the UPC Agreement.
Initial opinion is that the likelihood of at least some aspects of these actions succeeding is good, and that this is likely to open the door to further negotiation between the member states of the EU.
This report comes from European Patent Attorneys at WP Thompson & Co., 55 Drury Lane, London UK. Further details and commentary can be obtained from Gill Smaggasgale, a partner at the firm.
For additional information regarding this topic please see:
• "Member States Sign Agreement to Establish Unified Patent Court," February 21, 2013
• "Parliament Approves EU Unitary Patent Package," December 19, 2012
• "European Parliament Adopts Draft Regulations on Unitary Patent," December 12, 2012
• "Unitary Patent & Unified Patent Court," December 12, 2012
• "Progress for Single European Patent and Litigation System," November 12, 2012
• "EU Patent Is Finally Born," July 2, 2012
• "European Parliament Approves Enhanced Cooperation Procedure to Create Unified EP Patent System," March 1, 2011
• "Several EU Members Push for Unified Patent System," December 30, 2010
• "Europe Takes Step Closer to Single EU Patent and Patent Court," February 24, 2010