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Brussels, 8 March 2011

Patent Court: the Commission welcomes the delivery of the Court of Justice's opinion

The European Commission welcomes the delivery today of the opinion of the Court of Justice of the EU (CJEU) on the compatibility of the envisaged agreement on the European and EU Patent Court with the EU Treaties. Now that the opinion is available, the Commission will analyse it very carefully with a view to identifying appropriate solutions.

The opinion should have no impact on the decision foreseen to be taken by Member States on 10 March at the Competitiveness Council following the consent of the European Parliament authorising a move to enhanced cooperation in the area of unitary patent protection. The creation of unitary patent protection is legally distinct from the creation of the European Patent Court. It is important to maintain the momentum to bring decades of discussion on the EU patent to a quick and successful solution through enhanced cooperation.

In parallel, the Commission will work equally quickly to find an appropriate way forward for the Patent litigation system following the Court's opinion.

The CJEU was asked to deliver its opinion in June 2009. It found that the envisaged agreement on the European Patent Court in its current state is incompatible with the EU treaties.

The Commission will analyse the concerns raised by the CJEU very carefully and will work with the Presidency of the Council and the Member States to find as quickly as possible the best solutions in the interest of the patent system and its users.

The agreement on the European Patent Court and the creation of the unitary patent protection through enhanced cooperation are two distinct projects. There is no legal reason for Member States not to adopt the decision authorising enhanced cooperation creating unitary patent protection on 10 March as foreseen. Now that the opinion is available, the parallel work on patent litigation can resume with the same momentum as the work on the European patent itself.

The envisaged creation of the European Patent Court

The objective of the envisaged agreement, as it was submitted to the CJEU, is to set up a unified Patent Litigation System with a view to reducing the existing cost and complexity resulting from parallel litigation in several Member States and providing legal certainty by avoiding conflicting judgments. The European Patent Court as envisaged by the draft agreement would consist of a Court of first instance (with a central division and local and regional divisions in the different Member States) and an Appeal Court. It would have exclusive competence for proceedings relating to European patents granted by the EPO and for the unitary patent protection. The European Patent Court would be obliged to make a preliminary reference to the CJEU in case of doubts about the interpretation of EU law.

The European Patent Court would be set up through a "mixed agreement"1 between the EU, its Member States and third countries who are Contracting States of the European Patent Convention2.


The draft agreement on the European and EU Patent Court was developed in the Council after the relaunch of the patent reform debate in 2007. In March 2009, the Commission adopted a Recommendation to the Council to authorise the Commission to open negotiations on the draft agreement with non-EU countries.

In June 2009, the Council submitted a request to the CJEU on the compatibility of the draft agreement with the EU Treaties.

In December 2009, the Council unanimously adopted conclusions on an enhanced patent system in Europe which also covered major elements for the European Patent Court3.

The negotiations on the establishment of the EU patent failed at the end of 2010 because Member States were not able to agree unanimously on the applicable language regime. On 14 December 2010, on the basis of requests from 12 Member States, the Commission, under Commissioner Barnier's authority, submitted a proposal to authorise enhanced cooperation in the area of the creation of unitary patent protection. To date, 25 Member States have requested to participate in the enhanced cooperation. The European Parliament gave its consent on 15 February. The Council decision authorising enhanced cooperation is foreseen for 10 March.

More information:

1 :

An international agreement to be concluded by the European Union and its Member States on the one hand and by third countries on the other.

2 :

The Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973.

3 :

See related press release IP/09/1880

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