March 2011
The Court of Justice of the European Union (CJEU) has ruled that a proposed European and Community Patents Court is not compatible with EU law.
European patents are currently enforced nationally, which is cumbersome, expensive and leads to inconsistency of practice between European states. Central enforcement of a European patent has long been a goal in Europe. Unfortunately, creating the structure to do so has always been a matter of controversy. This is further complicated because not all the states that are members of the European Patent Office (EPO) are members of the EU.
The European Commission proposed the court, which would have exclusive jurisdiction over enforcement of patents granted by the EPO, including the proposed Community (EU) patent. The proposed court would be set up by international agreement between EPO member states, and would not be subject to the jurisdiction of the CJEU.
The CJEU considered whether the proposal was legal. The states concerned made submissions to the court, for and against the proposal.
The CJEU decided that the proposal was not legal, at least as presently framed. The major issue is the proposed transfer of powers from EU institutions to a court which was not part of the EU structure.
The EU is still progressing proposals for an EU patent. We wait to see if any headway on this will spark a rethink on the court.