Proceedings Of The Court of Justice of the European Union...

Court of Justice of the European Union (former ECJ)

In some earlier posting I had reported that, on the occasion of the 2945^th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research) - held on May 28, 2009, and in accordance with a Presidency proposal, a decision was taken to allow for a re-examination by the European Court of Justice (now: Court of Justice of the European Union)  of the compatibility of the drafted agreement on a single court system for solving patent disputes. However, the EU Council did not publish any Documents from which the gist of the questions put before the ECJ could be derived.

In another posting on this blog almost a year ago I had complained of the EU Council's refusal to fully publish Document 9076/09 discussing particulars of the referral. The redacted version accessible under the link as given here does not disclose any substantial details of the matter at stake.

Now there is a report on the ipeg blog saying that oral proceedings ('Hearing') before the Court took place on May18, 2010. It appears as if no documents concerning the case Avis 1/09 have been disclosed by the Court so far.

However, the iped blog refers to a text set up by Mr Jochen Pagenberg who was present at the Court hearing.

In the paper - which is said to be a preliminary snippet of some larger publication to be expected soon - Mr Pagenberg writes

"What can be expected from the Opinion of the ECJ? A clear affirmative answer in favour of compatibility of the present Agreement is highly unlikely in view of the persistent questions and serious doubts concerning the lack of judicial EU control over the EPO granting procedure. Beyond this the controversial legal basis between the Member States about the court system as a whole, and particularly with respect to the combined jurisdiction for EU and EP patents will most probably be addressed by the Court and can hardly be resolved to the satisfaction of all Member States."

Does this announce a very sharp surprise - 'lack of judicial EU control over the EPO granting procedure'? If I understand Mr Pagenberg correctly it might happen that the Court will decide eventually to throw out the very basics of the envisaged architecture of the EU Community Patent, namely the accession of the EU to the EPC. Will the European Patent Office have to be re-invented as a puely EU body? We shall wait and see.

[UPDATE 2010-06-09] Obviously a highly relevant posting on the PatLit Blog by Jeremy Phillips has escaped my attention. In his posting, Jeremy brings a link to a text with an Official Hearing report. This text also sheds some light on the wording of the referral as well as on political positions of various national Governments.

(Photo: (C) by TPCOM on Flickr licenced under a CC Licence)