Unitary Patent : ECJ lets the Council get away with the Enhanced Cooperation
On April 16th, 2013, the European Court of Justice finally gave its opinion on the appeal by Spain and Italy against the Council's decision to start an enhanced cooperation on the Unitary Patent. April regrets that the ECJ decided to blindly follow the Advocate General opinion by dismissing the action in full. Although not a surprise, this decision is disappointing both because of the lack of consideration given to important legal issues and because of the brevity of the arguments.
Spain and Italy, through legal action, had raised many arguments against the establishment of an enhanced cooperation: future problems concerning the common market, the Council's competence, breach of equality, etc.; the ECJ, however, excluded these arguments, in favor of a vision of enhanced cooperation to overcome political disagreement among Member States1.
However, the entire issue is not yet settled: today's decision affects only the enhanced cooperation, namely the modalities of implementation of the unitary patent. Another action, lodged by Spain, will force the Court to rule on the unitary-patent regulation itself, a regulation containing illegalities that have been repeatedly denounced2.
April is continuing to maintain a watch on the issue, even more so now given that the unitary patent today represents a threat to innovation and free software. This project's underlying idea (unifying patent titles and their jurisdiction between concerned Member States, by the mean of an enhanced cooperation) is not problematic; however, the terms and conditions of the application currently being considered are a source of concern: most of them would be entrusted to the European Patent Office (EPO), whose excesses in favor of software patents have long been denounced by April3.
- 1. For more information, see the section on the Union's fundamentals In Gérald Sédrati-Dinet's article "Only Gandalf can protect Europe from the Unitary Patent."
- 2. See for instance April's article "Unitary Patent: Poland Could Leave the Vessel, European Institutions Still in Denial,", but also all the references published on the unitary-patent.eu Web site.
- 3. For more on this issue, see April's summary on software patents (in French).