Spain loses the unitary patent case

In the opinion dated 18 November 2014,  Advocate General of the Court of Justice – Yves Bot, recommended the Court of Justice of the EU to dismiss the actions of the Kingdom of Spain v. Council of the European Union and the European Parliament for the revocation of Regulation (EU) No 1257/2012 of 17 December 2012. Introducing enhanced cooperation in the area of ​​the creation of unitary patent protection (unitary patent) and issued on the same day of Regulation (EU) No 1260/2012 implementing enhanced cooperation in the area of ​​the creation of unitary patent protection with regard to the applicable translation arrangements.

Allegations that Spain raised against the contested regulations revolve around the lack of a real unitary the nature of the European patent with unitary effect, which, in the view of Spain, disputes the legal basis of the Regulation 1257/2012 and that makes it can be deemed as a manifestation of the abuse of power, violation of the rule of law due to lack of jurisdiction over the decisions of the European Patent Office, issued a notification procedure, breach of the principle of autonomy of EU law and the principle of legal certainty, as well as the languages ​​to establish discriminatory language for citizens that don`t speak English, German or French.

Recognizing the allegations to be groundless, the Advocate General pointed out, inter alia, that the purpose of the Regulation 1257/2012 is to ensure uniform effect of European patents already granted, so the lack of jurisdictional control over the application procedure does not affect the validity of the regulation. The Advocate General also pointed out that Regulation 1257/2012 is not “fake” because it contains the basic conditions for the recognition of a single European patent effect (the same wording of the claims in all the Member States participating in enhanced cooperation and the entry in the register of the single effect), and the uniformity of protection is guaranteed by subjecting a particular European patent with unitary effect only law of one Member State whose law will apply to the territory of all the countries participating in enhanced cooperation. According to the spokesperson, the contested Regulation 1257/2012 supports the objectives of the EU and reinforces the integration process as it ensures unified protection.

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author: Aleksandra Gorzkiewicz, attorney at law at JWP Legal

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