Syndicate content


Legal basis of the unitary patent: do not play with fire!

Under close scrutiny, it appears that the legal basis of the regulation on the unitary patent is at best questionable. At worst, such doubts could very well mean that the regulation is simply illegal. In a situation where the enhanced cooperation procedure is already undergoing two appeals before the Court of Justice of the European Union (CJEU), the future of the unitary patent cannot afford such a strong legal uncertainty. Hopefully, some amendments to the proposed regulation could help the unitary patent to partly overcome this hindrance.

An inside view of the patent microcosm

The blog of the European Patent Lawyers Association (EPLAW) is interesting in many respects. For example it was the only place were, during Summer 2010, the opinion of the Advocates General of the European Court of Justice (ECJ) on the incompatibility of the proposed European Patent Court System with European Treaty Law was leaked. Recently, it was also the first place where the "non paper" of the Commission services about proposed solutions for a Unified Patent Litigation System was published. But here we want to focus on a series of posts on this blog, an exchange of views between two prominent members of EPLAW. Beside the opportunity to benefit from the take of of professional legal analysts about the opinion of ECJ on the incompatibility of the envisaged unified patent litigation system with European Union (EU) Treaties, reviewing this series of posts helps to understand what kind of patent system the "patent microcosm" hopes for, and what kind of alternative is the deepest fear of its members. Finally, now that Commission and Council have discussed some options about a unified patent litigation system, we can weight influence of the patent microcosm on EU institutions.

Council meeting of May 30th 2011: some clouds threatening the official blue sky of unitary patent

On Monday May 30th 2011, in a Council meeting, ministers and representatives of Member States have for the first time exchanged their views about the Commission proposals concerning the unitary patent, as well as about Commission non-paper concerning the jurisdiction. Although this meeting was quite boring, with each and every speaker stating more or less the same platitudes, some critics on major drawbacks have emerged from the delegations of France and Luxembourg. But the main achievement of this Council meeting, and the one which has hit the media's attention, was without any doubt the official declaration by Spain and Italy that both countries, which are the only Member States having refused to regulate under the enhanced cooperation regime, have filed an appeal before the European Court of Justice (ECJ) precisely against the Council's decision to launch the enhanced cooperation.

Patents in Europe: Barnier's mess

On March 10th 2011, the Commission and the Council of the European Union rejoiced in a press release about the decision taken in the morning by the Council, to authorize "an enhanced cooperation among Member States for the creation of a unitary patent title". But these fine statements were shattered by the next press conference: questions from a couple of reporters regarding a decision from the Court of Justice of the European Union on the very same subject embarrassed, at the very least, Commissioner Barnier. The deciphering of this Council meeting gives us the opportunity to explain this complex but essential issue in the fight against software patents, in which April is engaged.

Analysis of the opinion from the European Court of Justice on the unified Patent Court

On March 8th 2011, the Court of Justice of the European Union (CJEU) published its opinion on the compliance of the Patent Court (PC) draft agreement with European Union (EU) Treaties. This opinion was long-awaited for: the setting up of an unified jurisdiction is a pillar of the unitary patent currently discussed in Brussels. As April expected, the CJEU curtly axed the project, underlining its incompatibility with the EU basic principles.