Administrative procedure preceding unitary patent protection is compatible with EU law
05-05-2015 Print this page
PATENT LAW - UNITARY PATENT LAW
Administrative procedure preceding unitary patent protection is compatible with EU law: only establishes unitary effect on patents granted under the EPC.
"30 It follows from the foregoing that the contested regulation is in no way intended to delimit, even partially, the conditions for granting European patents — which are exclusively governed by the EPC and not by EU law — and that it does not ‘incorporate’ the procedure for granting European patents laid down by the EPC into EU law.
31 Instead, it necessarily follows from the characterisation of the contested regulation as ‘a special agreement within the meaning of Article 142 of the EPC’ — a characterisation which is not contested by the Kingdom of Spain — that that regulation merely (i) establishes the conditions under which a European patent previously granted by the EPO pursuant to the provisions of the EPC may, at the request of the patent proprietor, benefit from unitary effect and (ii) provides a definition of that unitary effect."
Regulation can be based on article 118(1) TFEU: apt to prevent divergences in terms of patent protection and, accordingly, provides uniform protection.
"51 It follows from the foregoing that the unitary patent protection established by the contested regulation is apt to prevent divergences in terms of patent protection in the participating Member States and, accordingly, provides uniform protection within the meaning of the first paragraph of Article 118 TFEU."
No misuse of powers.
"58 Indeed, in its plea alleging a misuse of powers, the Kingdom of Spain does no more than repeat its assertion that the contested regulation does not establish any judicial system capable of providing uniform protection of intellectual property rights throughout the European Union. That argument has, however, already been rejected in the context of the second plea in law."
Setting of the level of renewal fees and the share of distribution of those fees by Member States not in breach of Article 291(2) TFEU: constitutes implementation of legally binding Union acts for the puproses of Article 291(1) TFEU, which have to be implemented by Member States.
"75 It must therefore be held, contrary to what is maintained by some of the interveners, that the setting of the level of renewal fees and the share of distribution of those fees, referred to in Article 9(2) of the contested regulation, constitutes the implementation of a legally binding Union act for the purposes of Article 291(1) TFEU.
77 Under Article 291(2) TFEU, it is only where uniform conditions for implementing legally binding Union acts are needed that those acts are to confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 TEU and 26 TEU, on the Council.
78 However, in its fourth plea in law the Kingdom of Spain does not explain why those uniform conditions are needed for the purposes of implementing Article 9(2) of the contested regulation."
No breach of the judgment in Meroni v High Authority: EU legislature did not delegate implementing powers to Member States or the EPO.
"87 Given that — contrary to the Kingdom of Spain’s assertions — the EU legislature did not delegate any implementing powers which are exclusively its own under EU law to the participating Member States or the EPO, the principles laid down by the Court in the judgment in Meroni v High Authority (9/56, EU:C:1958:7) cannot apply."
Court does not have jurisdiction in an action under Article 263 TFEU to the rule of lawfulness of an international agreement or measure adopted by a national authority.
"As a preliminary point, it should be stated that the first two parts of the sixth plea in law are intended to establish, first, that the provisions of the UPC Agreement are not compatible with EU law and, second, that ratification by the participating Member States of the UPC Agreement is impossible unless they disregard their obligations under EU law.
101 However, it should be borne in mind that, in an action brought under Article 263 TFEU, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by Member States.
102 Nor do the Courts of the European Union have jurisdiction in such an action to rule on the lawfulness of a measure adopted by a national authority (see, to that effect, judgment in Liivimaa Lihaveis, C‑562/12, EU:C:2014:2229, paragraph 48 and the case-law cited).
103 It follows that the first two parts of the sixth plea in law must be rejected as being inadmissible."
