Spanish challenge to UPC lost in translation

The CJEU rejects Spain’s challenges to the legality of the unitary patent package

Last month saw the eagerly awaited decision of the CJEU in respect of the two challenges brought by Spain to the legality of the unitary patent package. The CJEU has dismissed both of Spain’s actions largely following the opinions of the Advocate General issued in November 2014.

The unitary patent package is a set of legislation designed to create a single ‘unitary’ European patent right,  which can only be registered, transferred, renewed or removed from the register in respect of all participating EU Member States. The package also establishes a Unified Patent Court (UPC) to handle infringement and validity cases relating to these unified rights.

Back in March 2013, Spain (which has chosen not to participate in the unitary patent system) challenged the compliance of the unitary patent package with EU law and sought annulment of two EU Regulations relating to it (the Unitary Patent Regulation and the Regulation on Translations).

In relation to the Unitary Patent Regulation, Spain argued that the proposed administration of the unitary patent by the European Patent Office (EPO) would be in breach of EU law.

The CJEU rejected this argument on the ground that the procedure for granting European patents is still exclusively governed by the European Patent Convention (an International agreement which is not subject to EU law). The regulation is therefore not intended to restrict the conditions for granting European patents, but merely establishes the conditions under which these patents can benefit from unitary effect.

As regards the Regulation on Translations, Spain alleged that the language provisions proposed for the unitary patent package infringe the principle of non-discrimination and would be prejudicial to individuals whose mother tongue was not one of the official languages of the EPO (English, French and German).

The CJEU considers the regulation to be justifiable in order to provide a uniform and simple translation regime to facilitate access to patent protection, particularly for small and medium-sized enterprises.

The CJEU’s decision to reject Spain’s recent challenges removes one of the last key obstacles to the implementation of the unitary patent package.  All that now remains is for the UPC Agreement to be ratified by a further 7 Member States (13 in total) including France, Germany and the UK.  It remains to be seen if Spain will reconsider its decision not to participate in the unitary patent system now that their challenges against the unitary patent package have failed.