While the European Council recently voted in favour of a unified EU patent system, the European Court of Justice (ECJ) concurrently ruled that the European Commission’s proposal for a Unified Patent Litigation System (UPLS) was contrary to EU law.

Ministers from 25 EU member states support the proposed unified patent system aimed at cutting costs and streamlining the patent registration process across the EU.  Italy and Spain however remain opposed to the proposal as their languages are not amongst the official languages chosen under the proposed regime. 

Unlike the Community Trade Mark, there is no single EU patent covering the whole of the EU at present.  An application to the European Patents Office (EPO) results in the applicant receiving a bundle of national patents. National patents can be enforced before the courts of individual member states however this can lead to duplication of litigation and inconsistent decisions from country to country.

In response to these concerns, the Commission published a proposal, in the form of a draft agreement, for a UPLS involving the setting up a Patents Court.  As a result of concerns expressed by some member states as to the legality of the proposed UPLS, the draft agreement was referred to the ECJ.

The ECJ has now ruled that the proposed UPLS is not compatible with the EU treaties. It held that conferring an exclusive jurisdiction in relation to community patent law to an international court would deprive the national courts in individual member states of important powers in relation to interpretation and application of the EU treaties. Furthermore, it would deprive the ECJ itself of its power to reply by means of preliminary ruling to questions referred by these courts. This would effectively alter the very nature of the powers conferred by the EU treaties on the institutions of the EU and of the individual member states.

The decision represents a major stumbling block to the creation of the UPLS.

Contributed by John Magee & Helena Walsh.