Although the European Union finally approved the continent-wide Unitary Patent in December 2012, after decades of discussions, the story is by no means at an end. Science describes the root of the problem: The final agreement introduced a complex arrangement for the oversight of patent matters by the Court of Justice of the European Union. Instead of being enshrined in the main patent regulation, the court's role will be mentioned indirectly in the Unified Patent Court agreement. Axel Horns, a patent attorney at the KSNH law firm in Munich, says the solution is "awkward." But it satisfies both defenders of the Court of Justice's supreme authority, such as the European Parliament, and those who want to limit its role, including some businesses and the United Kingdom's conservative government.
A key bone of contention is therefore what exactly the role of Europe's highest court, the European Court of Justice (ECJ) will have here, with different EU countries wanting very different things. But it's even worse than that, because two nations, Spain and Italy, refused to sign up to the Unitary Patent at all, after their respective languages were not included alongside the other official ones -- English, French and German. This has led to a Unitary Patent that doesn't actually unify Europe, but instead introduces yet another complicated layer on top of existing structures. Spain is now taking advantage of that fact to challenge the whole structure at the ECJ, as this story on The IPKat blog explains: By hiding the actual substance of the patent, its scope and its limitations, behind an -- admittedly clever -- system of legal referrals, the [Unitary Patent] regime has become even more complex. As a result, the ECJ is confronted with a patent which is in fact just an empty shell. This makes the Regulation [governing the Unitary Patent] either invalid for a lack of legal determination or it will force the Court to define the substance of the unitary patent out of the blue. It will however not prevent the Court from exercising its judicial review over the European patent system. The idea of keeping the ECJ out of the game by stripping down the Regulation was doomed to fail from the very beginning.
And if this lack of legal clarity is not enough to scupper the whole plan, Spain has two more lines of attack. Since it is not part of the Unitary Patent zone, Spain's companies are obviously at a disadvantage: Article 7 of the Regulation entails an indirect discrimination on grounds of nationality which results from the fact that unitary patents applied for by Spanish enterprises will always be governed by a foreign law.
It is also not unlikely that Spain will put its finger on the Court's greatest treasure, the Internal Market. There will almost necessarily be a distortion of competition between the Member States where the unitary patent is available and those where it is not.
In other words, the awkward compromise agreed to finalize the Unitary Patent last year actually contradicts the fundamental impetus behind the European Union: to create a uniform set of laws that apply equally across the whole continent. Probably for this reason the IP Kat blog suggests: the chances of success [for Spain before the ECJ] do look promising. The mutation from an autonomous patent for the European market to the hitherto unknown schizophrenic creature of a "European patent with unitary effect" has left deep scars, and every one of them could be taken up before the Court.
One thing is for sure: if the brakes have indeed been slammed on for the Unitary Patent project, they are unlikely to come off for a good while unless something dramatic happens. The IPKat blog reminds us that proceedings at the ECJ take about 22 months on average, so it may well be several years before we have the court's judgment, and things can move forward.
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