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UK patent attorneys: ECJ should reject advisors' opinion

Pan-EU patent court a good thing

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The European Court of Justice should reject the opinion of its advisors and put pragmatic economics ahead of legal technicalities and approve a pan-EU patent court, the UK patent attorneys' trade body has said.

Advocates General of the European Court of Justice (ECJ) said in an opinion that the current proposal for a pan-European patent court violates the principles of some of the EU's founding treaties.

But the Chartered Institute for Patent Attorneys (CIPA) has said that when making its final ruling the ECJ should make its decision in the light of the benefits such a court would bring to business.

"CIPA believes that the ECJ can – and should – put the undoubted benefits of the proposals ahead of issues of legal policy, if long-awaited changes to the patent system in Europe are to have any chance of being realized," said a CIPA statement.

"The European Court of Justice will have to take a pragmatic interpretation of the Advocate General’s Opinion if we are to see any possibility of a single European patent and a common European patents court system emerging from this process,” said CIPA's Vicki Salmon. "As it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties."

Advocate General Juliane Kokott said in her opinion that the current proposal for a patent court is not acceptable because it does not commit the court to take full account of all EU law and previous rulings.

"In its current wording ... the draft agreement therefore risks creating the impression that the future patent court [PC] will not be required to take into account, in its judgments, either the treaties or the fundamental rights and general principles of Union law, or even the relevant directives on the matter," said an informal translation of the French opinion published by UK law firm Simmons and Simmons.

"The European Union would not consent to the creation of a competent international patent court when the rules of operation of that court are at least ambiguous with regard to its obligation to take into account all Union law," said Kokott.

She said that what might appear to some to be a technicality could have wide implications in the field of patents.

"The observance of all Union law, including the fundamental rights and fundamental values on which the European Union is based, is of significant importance with regard to patents. In fact, although the dispute in this field seems, at first sight, to be a fairly technical matter, it should be noted that it may sometimes give rise to ethical problems of prime importance, particularly in the fields of medicine and biotechnology. Patent law may also have significant implications on the freedom of enterprise and the competition law," she said in the opinion.

Kokott said that although the proposal said that the patent court would "observe Community law", that commitment was ambiguous when the details of the proposal were taken into account.

"It is essential for the scope of the PC's obligation to apply Union law to be clarified in the proposed agreement," she said. "The Advocates-General consider that such a clarification should include the obligation to comply with all case law of the European Court of Justice, and not just the obligation to follow the preliminary judgments pronounced under article 48 of the proposed agreement, following reference of a preliminary question from the PC itself for a ruling."

Kokott concluded that the proposal could not be compatible with existing EU law.

"In the light of the foregoing considerations, the Advocates-General consider that the guarantees contained in the draft agreement with a view to ensuring the full application and observance of the pre-eminence of Union law by the PC are not sufficient," she said.

The opinion did make clear, though, that a patent court could be created within EU law. "With regard to the legality of creating the PC as an international court, situated outside the judicial system of the European Union and enjoying sole competence for certain types of appeal, one should first recall that Union law is not in principle opposed to an international agreement providing for its own judicial system," said Kokott.

"There are enormous commercial benefits to be gained – in the UK and across Europe – for companies who would have only a single European patent and a common patents court system to deal with," said CIPA's Salmon. "This has been the vision since the European Patent Office was set up in the early 1970s by a group of nations who were determined to make it happen."

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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