EU-Wide Patent System a Good Thing, Adviser Says

(CN) - Spain's challenge over legislation that created a unified EU-wide patent system fell on deaf ears, as an adviser to the European Court of Justice on Tuesday urged his colleagues to dismiss the action in full.

European lawmakers passed legislation in 2012 to create a unitary patent system for the entire EU, rather than the hodgepodge of national laws that implement patent protection. The new system enables inventors to apply for EU-wide patent protection, rather than filing an application in each member state where the invention might be used. The legislation also establishes a single patent court with jurisdiction across the European Union.

Spain filed a pair of challenges to halt the legislation, calling the new system an "empty shell" that will only work if all member states sign off on the unified patent court. The nation also expressed concern that its own national competence will be undermined by the unitary patent system, and questioned the decision to make only English, German and French the official languages of the new patent office.

In an opinion that - ironically - was not made available in English, Advocate General Yves Bot urged the European Court of Justice to dismiss Spain's actions. He noted that lawmakers specifically limited the unitary patent to provide EU-wide protection, without changing procedures already in place under 1973's European Patent Convention.

The new system simply streamlines the patent process, Bot said, and gives member states the authority to set renewal fees and to decide how those fees are distributed.

As to the establishment of a unified patent court, Bot said that EU lawmakers considered that setting up a court whose sole purpose is to hear patent cases was essential to the process of creating EU-wide patent protection. And since the new court has not yet been created, the Luxembourg-based court has no jurisdiction over that portion of Spain's challenge, the adviser added.

But Bot also noted that - in light of Spain's concern that some member states may not sign off on the creation of a patent court - member states have an obligation to cooperate with all efforts by EU lawmakers to achieve union-wide harmonization.

As for Spain's concerns over the choice of languages used by the new patent office, Bot said that the EU does not have a principle of language equality. And accommodating every language spoken in the EU would unnecessarily drive up the already high costs of patent protection, the adviser added.

The new patent office will eventually have an automatic translation system and also plans to reimburse applicants for translation costs up to a point, Bot said.

Bot's opinion is not binding on the Court of Justice, which has already begun its own deliberations in the case.

The high court already upheld the legislation that created the unitary patent system last year, over similar objections by Spain and Italy.

Earlier this year, the new system rolled out to all member states except Denmark - the fruits of 40 years of effort by EU lawmakers and member states.

The Unified Patent Court remains a sticking point, however, with only five states ratifying its creation so far.

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