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EU – Unitary Patent / A-G proposes that Spain’s actions against the regulations forming part of the unitary patent package be dismissed

Posted: November 18th, 2014

CJEU, Case Numbers C-146/13 and C-147/13 – Spain v Parliament and Council, Press Release No 152/14

The CJEU has issued a press release announcing that its Advocate General Yves Pot proposes that the Court should dismiss the actions brought by Spain and seeking annulment of the two regulations on the creation of unitary patent protection and on the applicable translation arrangements.

According to the Advocate General, the sole purpose of the regulation on the unitary patent protection is to incorporate recognition of unitary effect through a European patent already granted under the EPC. To that end the EU legislature limited itself to stating the nature, conditions for grant and effects of unitary protection, covering only the phase subsequent to the grant of the European patent without affecting the procedure regulated by the EPC. The protection conferred is regulated by the uniform implementation provisions of the regulation. The opinion, as far as it is summarized in the press release, does not address the problem that the EPO retains competence, outside the jurisdiction of the UPC, for European patents after grant including those with unitary effect, within the framework of opposition and limitation proceedings.

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As to Spain’s claim that the content of the Agreement on the UPC affects the Union’s powers and confers on a third party the power to determine unilaterally the application of the regulation, the Advocate General takes the view that the Court does not have jurisdiction to review the content of that Agreement in an action for annulment of the regulation. He observes that the Agreement does not fall within any of the categories of acts the lawfulness of which is subject to judicial review by the Court. It is an intergovernmental agreement negotiated and signed only by certain Member States on the basis of international law.

As regards the regulation on the language arrangements, the Advocate General recalls that EU law has no principle of equality of languages. He acknowledges that persons who do not know one of the official languages of the EPO will be discriminated against and that the EU legislature has thus put in place a difference of treatment. Nevertheless, the Advocate General takes the view that that choice of languages pursues a legitimate objective and is appropriate and proportionate to the guarantees and aspects which attenuate its discriminatory effect.

The full text of the Attorney General’s opinion will be published on the CJEU’s website on the day of delivery.

Read the press release of the CJEU No 152/14 here.

The full text of the opinion in C-146/13 shall be published here.
The full text of the opinion in C-147/13 shall be published here.

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

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