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December 2014

Advocate General (AG) Bot has given his Opinion on the challenges by Spain to the legislation that will implement and govern the Unitary Patent. The view of the AG is that the actions should be dismissed.

The Unitary Patent is intended to be a form of single patent available to cover all the European Union states that have signed Regulation (EU) No 1257/2012 (the "UP Regulation") and its accompanying Regulation (EU) No 1260/2012 (the "Translation Regulation"), and who have ratified the Unified Patent Court ("UPC") Agreement. Unitary Patents will be enforceable and revocable in all these territories simultaneously in the UPC. However, two Member States, Italy and Spain, did not sign the UP Regulation and the Translation Regulation. Spain is particularly opposed and filed a round (its second) of legal challenges to the Unitary Patent before the CJEU on 31 May 2013 (C-146/13 and C-147/13). These challenges both seek a declaration that the UP Regulation is legally non-existent or that it be annulled and, that the Translation Regulation is annulled in whole or in part.

The pleas in law filed by the government of Spain against these Regulations were as follows:

• Breach of the rule of law: the UP Regulation concerns a right granted by the European Patent Office, whose acts are not subject to judicial review;
• A lack of a legal basis, or non-existence: the UP Regulation does not introduce measures guaranteeing uniform protection and in part refers only to non-EU law (that is, the UPC Agreement);
• Misuse of power: enhanced cooperation has been used for purposes other than those provided for in the European Union Treaties;
• Failure to have regard to the Meroni case law and Article 291(2) TFEU by delegating the administration of the compensation scheme and the publication of translations to the European Patent Office;
• Infringement of the principle of the autonomy of European Union law: the application of the Regulations is dependent on the entry into force of the UPC Agreement; and
• Infringement of the principle of non-discrimination: the Translation Regulation is detrimental to persons whose mother tongue is not English, French or German.

However, AG Bot's Opinion is that all these pleas are unfounded and that Spain's actions against the European regulations implementing enhanced cooperation by the creation of the Unitary Patent must be dismissed. If followed by the CJEU the Spanish challenge will fail, clearing the way for the Unitary Patent and its accompanying translation arrangements to come into force, but only after the Agreement on the Unified Patent Court ("UPC Agreement") has received the thirteen ratifications required.

See also:

Momentum gathers behind the UPC
The UPC opt-out and its withdrawal: meaning and effect
The procedure for opting-out and withdrawal
Responsibility for opting out (and exclusive licensees)
Languages in the Unitary Patent

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