The Court Of Justice Of The EU Kills Patent Court Proposal.

Despite the reluctant information policy of the Court the text of the Opinion delivered pursuant to Article 218(11) TFEU – Draft agreement – Creation of a unified patent litigation system – European and Community Patents Court – Compatibility of the draft agreement with the Treaties- is available on the web anyway - thanks to the ipeg Blog.

The Court makes clear who rules the judicial side of the system of EU law:

"As is evident from Article 19(1) TEU, the guardians of that legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States. [...] The judicial system of the European Union is moreover a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions"

The European Patent Court does not fit into those boundaries:

"As regards the draft agreement submitted for the Court’s consideration, it must be observed that the PC:

• takes the place of national courts and tribunals, in the field of its exclusive jurisdiction described in Article 15 of that draft agreement,
• deprives, therefore, those courts and tribunals of the power to request preliminary rulings from the Court in that field,
• becomes, in the field of its exclusive jurisdiction, the sole court able to communicate with the Court by means of a reference for a preliminary ruling concerning the interpretation and application of European Union law and
• has the duty, within that jurisdiction, in accordance with Article 14a of that draft agreement, to interpret and apply European Union law. "

Therefore, the Court bluntly rejects the basic idea contained within the Draft:

"Consequently, the envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law."

The curtain goes down, end of play, game over?

Well, in some earlier phase of the discussion the EU Council had planned to set up a Patent Court for EU Member States only. In principle, such approach could still work if the supreme role of the Court of Justice of the European Union is preserved. In another of my earlier postings I wrote that an earlier version called European and EU Patents Court (EEUPC) is said to have exclusive jurisdiction in respect of civil litigation related to the infringement and validity of EU patents and European patents. If the Court would have been based on the EU treaties alone, it might have competence with regard to conventional European bundle patents as granted by the European Patent Office (EPO) only as far as the territorial extension of the EU goes. Countries like Turkey, Switzerland or Norway would be left out. This would have been some sort of disfigurement, no doubt. But in return there would have been a realistic chance that the bundle consisting of EU-wide patent plus EU patent court would mature into reality.

I don't know why in 2009 the focus was turned away from a closed EU-only legal system to an open international agreement. Anyway, it seems as if this move effectively has killed the EU Patent Court proposal.