On March 8, the European Court of Justice issued an opinion that a proposal to create a European Patents Court was not compatible with the provisions of the European Union Treaty and the Functioning of the European Union (FEU) Treaty.
In 2007, the European Commission had made various proposals to enhance the patent system in Europe. This and other developments led to the drafting of an international agreement — to be concluded between the Member States, the European Union, and third countries that are parties to the European Patent Convention — that would establish a European and Community Patents Court with jurisdiction to hear actions related to European and Community patents. The proposed Patent Court would be composed of a court of first instance, comprising a central division and local and regional divisions, and a court of appeal that would have jurisdiction to hear appeals brought against decisions delivered by the court of first instance.
The European Court of Justice held that the proposed agreement, “by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.”
This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.