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CJEU should throw out Spain's challenge to unitary patent plans, says advisor

A legal challenge brought by Spain against other EU countries' attempts to establish a new system for unitary patent protection within the trading bloc should be dismissed, an advisor to the EU's highest court has recommended.

In a non-binding opinion, Advocate General Yves Bot called on the Court of Justice of the EU (CJEU) to reject Spain's bid to have two regulations that would underpin a new unitary patent framework annulled.

Most EU countries, together with the European Commission, have been working for years towards the creation of a more efficient and cheaper way for businesses to gain patent protection for their inventions across national borders in the EU. The countries have taken advantage of a legal mechanism under the Lisbon Treaty to build the framework, which has still to be finalised and become reality.

The enhanced co-operation mechanism permits nine or more member states to use the EU's processes and structures to make agreements that bind only those countries. The CJEU previously ruled that it was legitimate to make use of the enhanced co-operation mechanism to reach agreement on the unitary patent plans and that the countries involved had engaged in the process properly, rejecting Spain and Italy's arguments to the contrary. 

However, Spain has lodged a further legal challenge against the plans before the CJEU.

Patent law expert Adrian Murray of Pinsent Masons, the law firm behind Out-Law.com, said he was not surprised that Advocate General Bot had recommended that the Court dismiss Spain's latest case.

"This opinion is unsurprising given the current political will to bring a, mostly, harmonised EU patent system into effect," Murray said. "Enhanced co-operation was implemented because the majority of the countries wanted to achieve such a system but recognised that Spain were opposed to how that system was taking shape. In other words, this appears to be precisely the type of situation for which the enhanced co-operation approach was provided and thus the challenge to the use of that approach always appeared to have questionable prospects of success."

"However, while it appears likely that the Advocate General’s opinion will be endorsed by the Court in the coming months and the Spanish challenges to the use of enhanced co-operation should fall away, there are still numerous issues, legal and logistical, that need to be resolved before the new unitary patent system can come into operation," he said.

Currently, inventions can be protected in Europe either by national patents, granted by national authorities, or by European patents granted centrally by the European Patent Office. The Commission has tried to reform these current arrangements, citing particular concerns with the cost to businesses in obtaining Europe-wide patent protection.

Under the proposed new unitary patent framework inventors would be able to make a single application for patent protection with unitary effect across all 25 EU member states that have indicated their intention to participate in the new unitary patent regime.

One of the complaints Spain has raised in its current challenge is in relation to the proposed languages regime which would apply under the new unitary patent framework.

Under the regime, applications for unitary patents would only be considered if they were in English, French or German. Applicants would, though, be compensated for having to translate applications from other languages. However, granted patents would initially only be published in English, French or German before being translated into all three languages.

Spain has said the languages regime is discriminatory. According to a CJEU statement on Advocate General Bot's findings, Bot agreed, but said the selection of languages under the unitary patent framework "pursues a legitimate objective and is appropriate and proportionate to the guarantees and aspects which attenuate its discriminatory effect".

In particular, Bot said that restricting the number of languages in the regime is justified as it is aimed at cutting down on the costs of translating complicated patent documents into many more different languages that apply in the EU. Bot said there is "no choice but to restrict the number of languages in which the patent must be translated" to keep those costs down, according to the CJEU statement.

In addition, Bot said: "Since the languages in question are the official languages of the European Patent Office, that choice ensures a certain stability for economic operators and professionals in the patent sector, who are already accustomed to working in those three languages."

"Moreover, the choice of languages acknowledges the linguistic realities of the patent sector: most scientific papers are published in German, English or French; and those languages are spoken in the member states from which most of the patent applications in the EU originate," he said.

A complex range of legislation, agreements and rules needed to make the new unitary patent regime operational has either already been created or are in the process of being finalised. A new unified patent court system is being developed to handle disputes over the validity and infringement of unitary patents. The new framework is not expected to be operational until 2016.

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