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Major setback for EU single patent

European Court of Justice rejects proposal for unified patent litigation system and a European and Community Patents Court

The Court of Justice of the European Union (CJEU) has given its opinion on the European Commission's proposal for a unified patent litigation system and a European and Community Patents Court. The CJEU has rejected the proposal, deeming it incompatible with the provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union.

The proposal had included a single European court structure, which would handle patent litigation for several contracting States of the European Patent Organisation, potentially including all EU States as well as other European countries. Currently, granted patents take effect individually in each separate country and any enforcement or litigation may only take place in the national courts of each country.

The proposal for a unified patent litigation system, alongside the separate proposal of a community patent, sought to centralise the current complicated, varied and disjointed system. The latter proposal, covering most community countries, excluding Spain and Italy which opted not to participate, was approved by the European Parliament on February 15, 2011 and must now be approved by the Council of Competitiveness Ministers later this week.

Will Cook, partner at Marks & Clerk Solicitors, commented: "The CJEU has poured cold water over the proposals for a unified patent litigation system, which has otherwise been widely supported by industry, judges and patent professionals alike. Its verdict is a huge step in the wrong direction for those frustrated by the existing diverse, complicated and varyingly expensive national systems.

"Proposals for the community patent went hand-in-hand with those for a unified patent litigation system. From an enforcement point of view, even if the community patent proposals go ahead, that patent seems likely to wither in the glare of uncertainty as to how involved the CJEU will become at appeal level. For the unitary court to work, there must be confidence that any final court of appeal will implement clearly and consistently the technical and specialised patent law covering the jurisdictions in question.

"Many industry players would need much more confidence that the CJEU would have significant specialist patent experience before entrusting their disputes, ultimately, to that court. Without the ability to enforce the community patent centrally, or at least in several countries at once, and in either case away from the non-technical review of the CJEU, users of the patent system are likely to stay with the current system of national enforcement.

"The CJEU has rejected the unified patent litigation system proposal on the grounds that it would not position the CJEU as the final court of appeal. But, with the exception of the CJEU, the one thing we all agree on is that the CJEU should not be the final court of appeal in a centralised system."

9th March 2011

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