ECJ Declares Proposed European and Community Patents Court Unconstitutional


On 8 March 2011, the European Court of Justice handed down its Opinion No 1/09, in which it found that the proposed agreement on the community patents court is not compatible with the provisions of the European Union Treaties. This seems to have dealt a fatal blow to the prospects of a single unified system in the near future.

Although the European Patent System was implemented 33 years ago, there is still no unified system for patent enforcement in Europe. This means that patents are currently litigated on a national basis, leading to forum shopping, multiple actions and increased costs.

Various proposals have been put forward over the years but have foundered primarily on two fundamental issues: language and the processes for litigation.

The latest attempt by the European Commission to resolve this situation involved the resurrection of the Community Patent (providing for a single unitary patent covering the whole European Union) coupled with a new Community Patents Court.

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