In some previous report from the UK Scrutiny Committee, the Under-Secretary of State has explained that UK would have not entered into the enhanced cooperation if the CJEU had said that the only solution for the unified patent court was that CJEU had jurisdiction of last resort for patent litigations. Apparently, Commission’s proposals have made UK to believe that the CJEU would not be much implied in patent litigation, with involvement only in referrals for preliminary rulings on points of EU Law, while considering that substantive patent law is excluded from EU Law, and therefore not subject to an overview by the CJEU. This opinion was also shared by EPLAW (Pagenberg and Tillmann, also Lord Jacobs has proven later to share these views).

But as time passed and as the legal basis of the regulation is was further analysed, people are starting to realise that there is no way to escape from substantive patent law to also be referred to the CJEU.

The Commission’s legal services has been very clear on this: the regulation wouldn’t comply with the treaty if articles 6-8 were moved out. I think this was after the meeting of the UK Scrutiny Committee related in this post. Ironically, Lord Jacobs has answered the Commission that if this opinion was true then any issue of substantive patent law should be included in the regulation, for instance: condition on the validity of unitary patent, i.e. patentable subject matter. We totally agree with Lord Jacobs on this.

With all due respect, supporters of a removal of Articles 6-8 (Mr Waugh has just copied/pasted EPLAW/Jacobs’ opinion) are maybe ones of the best legal experts with regard to patent law (aside disagreements regarding software patentability), but they have a really bad record with regard to EU Law. They advise the Commission for many years, click on the “Subgroups” tab on this page from the Commission website. They have drafted the agreement that was firmly rejected by the CJEU in its Opinion 1/09 from March 8th, 2011. They have advocated for a revival of the EPLA project, which was also firmly denied by the Commission as not being feasible in compliance with EU Treaties. And now, they argue for killing the regulation (i.e. giving grounds to the CJUE to nullify it) by removing articles 6-8. This is not very serious.

It can be hoped that MEPs will wake up too before the plenary vote and will fix the regulation, for eg. by stating clearly the autonomous character of the unitary patent, i.e. that rules governing the unitary patent, including for its grant by an extra-EU body, are deemed to be included in EU Law. See amendment 60 that was filed (and rejected) in JURI.

It should be noted that nobody had contested such an amendment yet, while amendments aiming to remove articles 6-8 were declared not compliant with EU Treaties.