« DE - Crimpwerkzeug III (crimping tool III) | Main | DE “Fälschungssicheres Dokument” (“Unforgeable Document”) »

19/08/2010

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

As the AGs believe that some drafting changes must be made, their conclusion is that the current draft does not yet comply with EU law.
Importantly, they do believe that the idea as such is compatible with EU law.
As the changes that need to be made are basically rather straightforward drafting changes, all what is needed is a next drafting round, which was planned anyway to dot the i’s.

Following the issues mentioned in the conclusion,
• The guarantees contained in the draft Agreement for ensuring full application and respect of the primacy of the European Union law by the European and Community Patents Court are insufficient (see paragraphs 78 to 93 of this opinion).
-> This requires a simple provision that EU law prevails over the EEUPC wording, and that the EEUPC courts have to take the entire EU law into account.

• The remedies available in case of breach of the European Union law by the European and Community Patents Court and in case of failure to comply with its obligation of reference for a preliminary ruling pursuant to Article 48, paragraph 1, of the draft Agreement are insufficient (see paragraphs 104 to 115 of this opinion).
-> This requires that on top of the possibility to refer questions on EU law to the ECJ, a provision is added to allow the Commission and Member States to file an appeal in the interest of the law with the ECJ.

• The language regime before the central division of the European and Community Patents Court might violate the rights of the defense (see paragraphs 121 and 122 of this opinion).
-> This requires that parties may obtain translations of documents in the file of the Central Division. The AGs do not say that that the language of the proceedings may not be the language of the patent, or that these translations must be free of charge, or that the other party or the court must pay for these translations.

• The draft Agreement, read in the light of all the measures contemplated in matters of patents, does not meet the need to ensure an effective court control and a correct and uniform application of the European Union law in the administrative litigation relating to the grant of Community patents (see paragraphs 68 to 75 of this opinion).
-> What needs to be done here is the adoption of a new EPC rule (note that the under Article 164(1) EPC the rules are an integral part of the EPC) to the effect that the Boards must refer questions on EU law to the ECJ, and that on top of this possibility for the EPO Boards of Appeal to refer questions on EU law to the ECJ, a provision is added to allow the Commission and Member States to file an appeal in the interest of the law with the ECJ.

In sum, some drafting changes are needed, but the principles of the EEUPC agreement are not affected.

What is more important, is that this is just a legal opinion. We still have to face the political reality that from the hearing before the ECJ it follows that only about 50% of the Member States are positive about the idea, while some other states are firmly opposed, so that if people continue to get something applicable to the entire EU, it will take forever before it is ratified by all EU Member States + the EU + at least one non-EU state. So, we need something that applies only to the states that are enthusiastic about the idea.

The comments to this entry are closed.

Categories

EPLAW Patent Blog sponsors:

Enter your email address:

Delivered by FeedBurner