You’ve rightly recalled that Art 118. TFUE is about “creating an intellectual property right”. Therefore the so-called unitary patent which is created by the regulation is deemed to be a legal object of the EU. Such a legal object cannot come out of the blue, its existence has to enter somehow into EU legal order.

As recalled by the Advocates General, there are two solutions for this. Either there is a delegation of powers to the EPO to grant unitary patents, or European patents granted by the EPO are transformed into unitary patents.

My interpretation is that the current regulation defines a delegation. As opposed to previous plans where EU would have accessed EPC, and where European Patent would have been transformed into an EU patent (just like European patents are now transformed into national patents).

There is no distortion for my own purpose. This is my legal interpretation. I’m not saying it is the Truth (only CJEU will tell). Some others (see Jaeger from Max Plank Institute, for eg.) think that the regulation defines a transformation. But whatever is true, Advocates General have made clear that rules used by the EPO to grant or refuse an application or an opposition, have to be appealable before an independent court.

“The EU cannot entrust a non-EU entity to accomplish tasks conferred to the EU by the Treaties.”

Like Dr. Pagenberg, you distort the content of Art. 118 TFEU for your own purposes. You purposely confuse “creating an intellectual property right”, as put by Art. 118 TFEU, with the actual administrative task of granting those titles. While Art. 118 TFEU does require that this intellectual property right “provides uniform protection throughout the Union”, which puts enforcement of the intellectual property right at the core of the EU legal order, nothing in this article, or in the rest of the Treaties, pertains to the conditions under which such an intellectual property right shall be granted.

“The article speaks of the creation of intellectual property rights, i.e. a uniform centralized granting procedure which we will have with the EPO.”

This is blatant sophistry. We already have a uniform centralised granting procedure with the EPO, but it precisely does not produce an European intellectual property right providing uniform protection of intellectual property rights throughout the Union.

“And if one wants to add also a centralized court system which coordinates and supervises the enforcement (I do not see this as a requirement of Art. 118, but let us assume it), then were is the requirement that the core of patent infringement rules should become part of the EU legal order?”

It is surprising that somebody who is so vocal about this proposed regulation fails to note that the regulation does not provide a centralized court system, or indeed any court system at all (which is, for why Italy has already indicated its intention to join the separate agreement on the court system, and indeed is applying to host the central division of the court, but still opposes the regulation). On the other hand, the requirement that the core of patent enforcement rules should become part of the EU legal order is plain in Art. 118 TFEU: “…to provide uniform protection of intellectual property rights throughout the Union…”.

I am sorry to say, but your position, rather than based on sound legal arguments, seems tainted by a personal animosity against the CJEU and its judges.

“The article speaks of the creation of intellectual property rights, i.e. a uniform centralized granting procedure which we will have with the EPO.”, rightly says Dr. Pagenberg, recognizing implicitly that the powers conferred by Art 118.1 to the EU are, in the current proposal, delegated to a certain degree to the EPO. And Dr. Pagenberg goes on admitting that “one can entrust the granting procedure to a non-EU entity”.

Well, EU legal order and CJEU case-law is not like this. The EU cannot entrust a non-EU entity to accomplish tasks conferred to the EU by the Treaties. When there is such a delegation of power, this non-EU entity should be subject to the same rules as if unitary patents were granted by an EU agency. That means not only that CJEU shall supervise EPO acts, but moreover that provisions of the EPC which carry out such a delegation of powers, shall be contemplated as included in EU law.

I’m sorry but if one wants an illegal regulation which would sign the death of the uitary patent, one must only exclude substantive patent law from EU law, forbiding ECJ to be involved in these matters.

Gibus, Paris

If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible.

If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible.

And if somebody intended to lay a solid ground for failure of this – at some time very promising – project, then he will probably succeed.

The other remark – and I have written enough on this topic over the last three monts and before – concerns the interpretation of Art. 118 TFEU which I reprint here:

Article 118

In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements…

The article speaks of the creation of intellectual property rights, i.e. a uniform centralized granting procedure which we will have with the EPO. And if one wants to add also a centralized court system which coordinates and supervises the enforcement (I do not see this as a requirement of Art. 118, but let us assume it), then were is the requirement that the core of patent infringement rules should become part of the EU legal order? If one can entrust the granting procedure to a non-EU entity, the EPO, which applies non-EU law, namely treaty rules contained in the EPC, why should this be different with the enforcement side?

I made similar remarks and asked similar questions already at the Warsaw conference organized by the Polish presidency last summer: Nobody could give or dared to give an answer based on the very simple text of Art. 118. One (German) member of the legela committee of teh EU Parliament admitted that this is not a legal but a political question. This is an answer, but the wrong one.

Dr. Jochen Pagenberg, Munich

You find Professor Tillmann’s arguments “unconvincing”, yet avoid addressing his key argument, namely that Art. 118 TFEU requires Arts. 6 to 9 of the Unitary Patent Regulation.

Whether Arts. 6 to 9 are convenient or not, and whether the CJEU has a good or bad record in IP matters is quite inconsequential if Arts. 6 to 9 and the CJEU’s involvement are, respectively, necessary and unavoidable.

As for Spain being “well advised” to remain outside these arrangements, in IP matters at least I’d still take the CJEU over the Spanish national courts any time of the day, and I’m Spanish myself.

P.S.: Amsterdam is definitely not the highest place in the Netherlands.

The idea that most questions of infringement would be ‘acte claire’ is not, to me at least, credible. Within my sphere of knowledge, the approach of the German courts to claim construction (doctrine of equivalents) and the approach adopted by the English courts (construing the claim by asking what the skilled person would have understood the patentee to be intending to claim) are fundamentally incompatible yet they lie at the core of infringement law – i.e. how to judge the scope of a claim and whether a product falls within the scope of protection.

If, in answering questions such as how to determine the scope of protection of a patent claim, the ECJ introduces the same degree of uncertainty in patent law as it has in the case of trade mark law, the EU patent system will fail its users, which may lead to manufacturers deciding to locate new factories outside of the court’s jurisdiction. In such case, Spain may be well advised to remain outside of the proposed EU patent arrangements.