European Patents Court Incompatible with EU Treaties

The court was to be established not solely within the judicial structure of the EU but as a court to be used by all interested members of the European Patent Convention. The CJEU was averse to the idea of a non-EU regulated court deciding cases which effect EU citizens. It is hard to see how the proposed court can be modified to meet the CJEU’s concerns without making it very different, and one which may not be so acceptable to its users.

The ideal of a Community patent and a centralised patent litigation system has been mooted for over four decades and, whilst it is seemingly closer to fruition than previously, it is still some way off. Recently, the EU Commission has been spearheading an ‘enhanced procedure’ mechanism aimed at creating a partial Community patent for those countries which want it. The Commission is hopeful that 25 of the 27 Member States will be willing to adopt it (Spain and Italy are currently against, because of the refusal to provide for translations into their languages).

What the ‘enhanced procedure’ does not yet deal with is the proposed court system of this partial Community patent. No doubt the Commission is hoping to utilise many of the features of the above (failed) pan-European court, although it will have to take into account the judgment of the CJEU. Whatever happens, progress is likely to be slow and problematic and, whilst it may not be another four decades, it is unlikely to happen any time soon.

In the meantime, the current system of litigating European patents in one or more Member States and the options for a degree of forum-shopping will continue. Whilst this may be seen as detrimental to the concept of a single market, this is not necessarily a bad thing for users of the system as it can often be useful to counteract some of the procedural and evidential differences amongst national courts which in themselves might be said to undermine legal certainty.