The Community Patent

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.