Europe's Court of Justice (CJEU),
the EU's highest court, has dealt a blow to attempts to create a pan-European
court to handle patent litigation, saying it would break EU law.
The justices said in the legal opinion issued Tuesday, which is not binding but
followed in most cases, "would alter the essential character of the powers
conferred on the institutions of the European Union and on the member states."
At present, alleged infringements of patents have to be challenged in national
courts, creating huge costs that smaller companies have trouble covering.
The European patent court was to handle cases for 38 states, including all EU
countries but also states like Turkey and Switzerland.
There have been objections to
countries such as Spain and Italy to a Union-wide patent because their languages
are not qualified filing languages and 12 countries are supporting a move to
progress the issue despite their objections: the countries are Denmark, Estonia,
Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland,
Slovenia, Sweden and the UK.
European Patent validated in only 13 member states can cost up to €18,000, of
which nearly €10,000 arises from translation fees alone. This has created a
situation in which the cost of a European Patent is ten times greater than a US
patent, which costs on average €1,850. Because of the costs involved, most
inventors only patent their invention in a very limited number of member states.
China promotes flood of patents while Europe tries to break patent logjam
The European Commission (EC) has welcomed the opinion of the
Court of Justice. Now that the opinion is available, the Commission said it will
analyse it very carefully with a view
to identifying appropriate solutions.
said the opinion should have no impact on the decision to be taken by member
states on Thursday March 10th at the Competitiveness Council following
the consent of the European Parliament authorising a move to enhanced
cooperation in the area of unitary patent protection.
The EC said the creation of unitary patent
protection is legally distinct from the creation of the European Patent Court. It is
important to maintain the momentum to bring decades of discussion on the EU
patent to a quick and successful solution through enhanced cooperation.
In parallel, the Commission said it will work
equally quickly to find an appropriate way forward for the patent litigation
system following the Court's opinion.
The CJEU was asked to deliver its opinion in June
2009. It found that the envisaged agreement on the European Patent Court in its
current state is incompatible with the EU treaties.
The Commission said it will analyse the concerns
raised by the CJEU very carefully and will work with the Presidency of the
Council and the member states to find as quickly as possible the best solutions
in the interest of the patent system and its users.
The agreement on the European Patent Court and the
creation of the unitary patent protection through enhanced cooperation are two
distinct projects. The EC said there is no legal reason for member states not to
adopt the decision authorising enhanced cooperation creating unitary patent
protection on this Thursday.
The envisaged creation of the European Patent Court
objective of the envisaged agreement, as it was submitted to the CJEU, is to set
up a unified Patent Litigation System with a view to reducing the existing cost
and complexity resulting from parallel litigation in several member states and
providing legal certainty by avoiding conflicting judgments.
European Patent Court as envisaged by the draft agreement would consist of a
Court of first instance (with a central division and local and regional
divisions in the different member states) and an Appeal Court. It would have
exclusive competence for proceedings relating to European patents granted by the
EPO and for the unitary patent protection. The European Patent Court would be
obliged to make a preliminary reference to the CJEU in case of doubts about the
interpretation of EU law.
The European Patent Court would be set up through a
"mixed agreement" between the EU, its member states and third countries who
are Contracting States of the European Patent Convention.
EU Patents Single Market
The US Senate on Tuesday
passed a bill that would overhaul the nation’s patent system, giving the
Patent and Trademark Office (USPTO) more flexibility to control its own financing and
changing the system to one that rewards the first inventor to file a valid
The New York Times said the House is unlikely to take up a patent bill anytime
soon, and people with an interest in the patent system say they expect its bill
to be significantly different.
The White House said that by moving
the United States to a first-to-file system, the bill simplifies the process of
acquiring rights. This essential provision will reduce legal costs, improve
fairness, and support US innovators seeking to market their products and
services in a global marketplace. Further, by providing authority for the USPTO
to establish and adjust its fees to reflect changes in costs, demand, and
workload, the bill would enhance productivity – reducing delay in the patent
application process - - and ensure full cost recovery at no taxpayer
expense. The Administration said Senate passage of this bill is consistent with the Administration’s
commitment to support and encourage innovation that leads to improved
competitiveness, economic prosperity, and job growth - - without adding a penny to