The EUCJ (European Union Court of Justice) has just issued an important decision on April 16, dismissing the action which had been filed by Spain and Italy against the Regulation on the Unitary patent.
These two countries were trying to block the Unitary patent on the basis of an alleged breach of the EU treaty.
The EUCJ, in rejecting all the arguments of Spain and Italy, fully justified the enhanced cooperation which allowed the EU Council and the EU parliament to accept the creation of a Unitary patent right for only 25 member states of the EU (the EU comprises today 27 member states)
This important decision completely clears the way for the ratification of the Unified Patent Court agreement and entry into force of the Unitary patent which is expected in 2014 or beginning 2015.
© CASALONGA, April 2013
The Agreement on the Unified Patent Court has been signed on February 19, 2013 by almost all EU member states, including Italy.
Please refer to our previous note of January 2013 for more details on the Unified Patent Court and the Unitary Patent.
It is expected that the UPC together with the Unitary patent regulation could enter into force before June 2014 after ratification of the agreement by at least 13 EU member states (including France, Germany and United Kingdom).
In the mean time, the Rules of procedure for the UPC will have to be finalized and the level of the renewal fees for the Unitary patent determined.The local and regional divisions of the court of first instance will have to be decided and organized in the various contracting member states.
The organization of the central division located in Paris is presently already under way.
|CASALONGA & ASSOCIÉS received the 2012 Golden Award for the best French IP team during the 12th Awards Ceremony "Les Trophées du Droit et du Contentieux" (Law and Litigation Awards).|
Bureau CASALONGA & JOSSE, founded in 1867, has changed over the years in order to propose more services:
and, as of July 1st, 2012, a new name: Bureau CASALONGA & JOSSE becomes CASALONGA & ASSOCIÉS.
The EPO has announced that as from April 1st, 2012, most of its fees will increase on the order of at least 5%.
Aware of the turbulent financial markets and despite the considerable increases in EPO fees, we will maintain our professional fees unchanged.
1) The EU Council authorized on March 10 an enhanced cooperation between 25 Member States of the EU on the creation of a unitary Community patent (future EU patent).
This had been first requested by a more limited number of countries including France, Germany and UK after the collapse of the discussions between the 27 Members States of the EU on a combined proposal of the EU Commission concerning both the EU patent and a common Court system for deciding on validity and infringement of EU patents and European patents as well. In fact the 27 countries could not reach an agreement on the language regime of a future EU patent, Spain and Italy refusing to abandon their national language.
According to the new discussion of the enhanced cooperation, the language regime for the future unitary patent system would be based on the language regime of the European Patent Office (EPO), where the official languages are English, French and German.
The future unitary patent would be automatically valid throughout the territory of the EU member states participating in the enhanced cooperation in the (EPO) language in which it has been granted. However a complete translation for informative purpose only, would still have to be filed after grant for a transitional time period (until high quality machine translations are made available). In case of disput, mandatory translation obligations would be provided.
No proposal for a new court system for such a unitary EU patent has so far been made.
2) The Court of Justice of the EU (CJEU) has decided on March 8, that the draft prepared by the EU Commission concerning a new Court system for European patents as well as for a future EU patent, was not acceptable since it would have given jurisdiction to an International court thus depriving the National courts of the EU Member States of their powers in relation to the interpretation and application of EU law and the CJEU of its powers to reply to questions referred to by the national courts.
According to the decision, this would alter the essential character of the powers which the EU treaties confer on the institutions of the EU and which are indispensable to the preservation of the very nature of the EU law.
It is clear from the decision that the validity and infringement of a EU patent can therefore only be decided within the frame of a national court or a new court system established within the strict limits of the EU in contrast with the proposed draft which was for an international agreement including countries outside the EU (Switzerland) and able to handle also the European patents.
It is difficult at the present time to forecast any future development. It could be that the EU Commission will try to present a new proposal within the frame of the EU court system, exluding European patents and countries outside the EU such as Switzerland or Turquey.
According to new Rule 141(1), an applicant for a European patent application claiming priority of a previous application has to file a copy of the results of any prior art search carried out by the authority with which the previous application was filed (office of first filing).