European Union: European Unitary Patent: Spain Raises New Legal Challenges

Following the approval of the Unitary Patent package by the Council and European Parliament in December last year, representatives of 25 EU member states signed the Unified Patent Court (UPC) Agreement in February this year, seemingly paving the way for implementation of the new Unitary Patent system in the near future.

Officially, the EU maintains that the first unitary patents are expected to be granted in early 2014, although various details still remain to be determined concerning the costs associated with the unitary patent and the rules of procedure of the UPC.  Within the last week, however, the Spanish government has brought two new cases (Cases C-146/13 and C-147/13) before the Court of Justice, casting fresh doubt upon whether this timetable can be met.

Spain and Italy had previously (in Cases C-274/11 and C-295/11) challenged the legality of the "Enhanced Cooperation" mechanism which has been used to allow the EU to press ahead with the unitary patent system without Spanish participation.  A decision has yet to be reached, but the Advocate-General's opinion suggests that the Court is likely to dismiss the joint Spanish-Italian complaint.

Details of Spain's new challenges are not yet available but, as reported here, these are believed to relate to the legality of Regulation 1257/2012, implementing "Enhanced Cooperation", and Regulation 1260/2012, governing the translation arrangements applicable to unitary patents.

Even if Spain turns out to be tilting at windmills with these latest complaints, it is possible that the mere existence of the new cases may be sufficient to delay the unitary patent system's entry into force, pending the Court's decisions.  The EU's determination to see the first unitary patents granted in 2014 may therefore turn out to be a quixotic endeavour.

More information with regard to the details of the new Spanish challenges should be available in due course.

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