Rationale to postpone enhanced cooperation on unitary patent after ECJ opinion

In addition to an open letter1 sent to all Members of European Parliament2, April publishes a rationale to explain why European Parliament should postpone its vote to accept or reject an enhanced cooperation with regard to the unitary patent [8]3 until the European Court of Justice (ECJ) has released its opinion.

What is currently discussed is not the first attempt to implement a unified jurisdiction for patent litigations. The previous project where the European Parliament (EP) has to give an opinion was called EPLA (European Patent and Litigation Agreement). EPLA was initiated by European Patent Office (EPO) and planned a unified jurisdiction between countries that have accessed to the European Patent Convention (EPC) and the Member States of European Union (EU). EPLA has been aborted for legal competency reasons: the EU was not included in this agrrement although it overlapped with some criminal issues included in the "acquis".

In 2007, the Commission revives the idea of a unified jurisdiction with EEUPC (European and EU Patent Court). This time, to address issues raised with EPLA, the Commission is directly included in the project: EU would be a member of EEUPC and would access to EPC.

However, the project drags on since 2007, mainly due to issues regarding translation arrangements. Because of these issues, the project of pursuing an enhanced coopeation on the unitary patent has been launched. But this procedure raises other issues: it is not clear how UE could be included as such in the process while in the context of an enhanced cooperation, meaning that some Member States are not involved.

Above all, this raises a legal imbroglio: if the unified jurisdiction as foreseen in EEUPC – and it is globally the same as in EPLA — is censored by ECJ, there is no planned alternative and it will results with an unusable enhanced coopeation that cannot lead to anything concrete.

Moreover, even if nobody — not even patents supporters4 – expects that the project will be rubber stamped as is, ECJ could also point out some solutions to issues it raises. Actually, while ECJ cannot force UE to implement any particular solution without exceeding its role which is not to legislate, it can let legislator choose between several legal solutions. Thus, Advocates General have pointed out for example that EEUPC could be used as an Appeal Court for administrative appeals against EPO's decisions, or that an administrative patent court could be created for this purpose.

This is one more reason to wait for ECJ's opinion, since EU just doesn't know where it sets foot in. Two alternatives can happen:

The unified jurisdiction is burried by ECJ, the scheme has therefore to be rebuilt from the start. It is sensitive for European Parliament to vote on a text which EP have no idea what would result from it.
The ECJ can propose some corrections to the currently proposed scheme, which would probably question many characteristics of the project. The enhance cooperation whould then be able to go on, but with a different scheme than what was initially envisaged, and with already some adjustments to be carried out. In that case also, it is not very consistent to vote on a project that has to be changed even before considering an implementation.

In these two cases, some Member States will likely disagree with the proposed scheme for the enhanced cooperation: therefore there is some risk that theses Member States could block the enhanced cooperation or just opt-out – as the United Kingdom, which has already said it will do so5.

ECJ's opinion will surely change a lot of things. Therefore, it is not very consistent to vote on a project before knowing what this project is exactly. Moreover, it has to be taken into account that if some Member States have already expressed their will to opt out from the enhanced cooperaiton in case the ECJ would block the text, some other Member States are likely to question their own participation to the enhanced cooperation. In short, the situation would then be very complex on a legal point of view, with an enhanced cooperation that would already be different from what has been voted and discussed in Parliament just a few days ealier.

Waiting for ECJ's opinion results in having at least some minimal visibility on what could happen next — on the conceivable scheme and on participating Member States.

It can even be argued that it would save a considerable amount of time, since waiting would prevent to being forced to solve the unmanageable situation into which the European Parliament, the Commission and the participating Member States would have put themselves.