Unitary Patent: Endgame in sight for Spanish challenges?

The latest challenges brought by Spain against the unitary patent and unified patent court were heard by the CJEU on 1 July 2014.

In cases C-146/13 and C-147/13 the Spanish government has requested the nullification of Regulations 1257/12 and 1260/12, respectively implementing the “enhanced cooperation” procedure in respect of the creation of the unitary patent and in respect of the applicable translation arrangements.  If Spain prevails, efforts to establish a unified patent regime for the European Union will be severely disrupted at the very least, and possibly derailed entirely.

Spain’s pleas in law and main arguments can be found here and here.  Detailed discussion of these can be found elsewhere, although two arguments in particular will require careful consideration by the Court.  These concern an alleged lack of legal basis for the Regulations in the Treaty on the Functioning of the European Union; and an allegation that the EU cannot legally delegate certain tasks to the EPO, as decisions of the EPO are not subject to judicial oversight.

The July hearing unfortunately provides little insight into the Court’s thinking at this stage.  However, it has emerged that the opinion of the Advocate-General (AG) is due to issue on 21 October 2014.  While the Court is not obliged to follow the AG’s opinion, in practice there is a strong likelihood that it will do so.

A final decision by the Court is not to be expected for some time, but for anyone with an interest in the future of the Unitary Patent, 21 October 2014 seems to be the date to watch.

Alexander Robinson, Technical Assistant