ECJ sinks plans for unified European patent court

The European Commission's push to establish a common EU patent system suffered a major blow on Tuesday, as the union's top court said a key part of the scheme would be unlawful.

The European Court of Justice has said the European Commission's plan to establish a patents court would be unlawful.

Less than a month after MEPs green-lit the plan, the European Court of Justice (ECJ) said the establishment of a European and Community Patents Court (ECPC) would not be compatible with European Union law. The ECJ said such a court, operating "outside the institutional and judicial framework of the European Union", would take powers away from both the ECJ itself and national courts, which would no longer be able to interpret and apply EU laws in the field of patents.

"The agreement would also affect the powers of the Court to reply, by preliminary ruling, to questions referred by those national courts," the ECJ said in a statement. "Accordingly, the agreement would alter the essential character of the powers conferred on the institutions of the European Union and on the Member States which are indispensable to the preservation of the very nature of European Union law."

The ECJ's opinion (PDF) was initially requested in July 2009 by the Council of the European Union. The Commission's plans to create a unified patent system are a response to the current situation, in which patents have to be filed in all EU countries, in various languages, if they are to apply to across the union.

The agreement would alter the essential character of the powers conferred on the institutions of the EU and on the Member States.

– ECJ opinion

The Commission downplayed the ECJ's ruling, saying it should not have any impact on the upcoming introduction of "enhanced co-operation" between member states on a unified approach to patent protection. In a meeting this Thursday, the Commission's Competitive Council is expected to follow the European Parliament in approving the move.

"The creation of unitary patent protection is legally distinct from the creation of the European Patent Court," the Commission said. "It is important to maintain the momentum to bring decades of discussion on the EU patent to a quick and successful solution through enhanced co-operation."

The Commission added that it will analyse the concerns raised by the ECJ "very carefully" and will work with the Presidency of the Council and member states to "find as quickly as possible the best solutions in the interest of the patent system and its users".

Decision reaction

According to intellectual property consultant Jeremy Phillips, writing on the IPKat legal blog, the ECJ's decision was foreseeable from the start.

"Aiming to get the [unified patent litigation system] accepted within the current EU framework was a bit like aiming a Mini at a brick wall and driving at it at full speed in the hope of finding a gap in it," Phillips wrote.

The Intellectual Property Expert Group (Ipeg), another IP consultancy, described the ECJ's opinion as "worse than anyone could have thought". It suggested that a revival of the European Patent Litigation Agreement (EPLA), a predecessor to the Commission's current plan, is "the only reasonable option now" for a unified patent court system.

Many campaigners had argued that the EPLA would lead to the establishment of software and software-related patents in the EU. One of those was activist Florian Mueller, who wrote on Tuesday that he does not think a new court system is needed to make software patents more enforceable in Europe.

"Therefore, even though I opposed a predecessor of the envisioned European and EU Patents Court, I'm not gloating today," Mueller wrote. "In the face of reality, I believe it would be positive to bring down the price of a Europe-wide patent.... One cannot reasonably advocate a system that makes patents affordable only to large companies."

Will Cook, a partner at Marks & Clerk Solicitors, noted that the proposals for the community patent were tied to those for the unified patent litigation system.

"From an enforcement point of view, even if the community patent proposals go ahead, that patent seems likely to wither in the glare of uncertainty as to how involved the [ECJ] will become at appeal level," Cook said. "For the unitary court to work, there must be confidence that any final court of appeal will implement clearly and consistently the technical and specialised patent law covering the jurisdictions in question."

Mueller also noted that a less costly European patent system would also help open-source developers and companies to obtain and, if necessary, enforce patents on a Europe-wide scale. He also suggested that at some point the EU will want to have a "unified patent system, including a single patent court".