Spanish challenge to new European regime: is the Court of Justice failing to engage with the issues?

German attorney and Certified Specialist for IP Law Ingve Stjerna has written a further analysis of the current judicial scrutiny of the European Union's proposed (but not yet operative) new regime for patents.  It's "Unitary patent“ and court system – Advocate General’s Statements of Position: Superseded by reality" and you can access it via Ingve's website here.  Focusing on the Advocate General's Opinion in Case C-146/13 Spain v Parliament and Council [which, astonishingly, is still not available in English] and the implications of the most recent events at the EPO, Ingve sets the scene as follows:

On 18 November 2014, Advocate General Yves Bot‘s Statements of Position in the Spanish nullity proceedings against the two Regulations on the “unitary patent” were published, his recommendations to the Court being a rejection of the actions. Once again, the legal issues are subordinated to the political interest in the implementation of the “patent package”, however, based on a widely not very convincing argumentation. Especially the Statement in case C-146/13 largely tries to avoid any contextual debate of the critical aspects raised, e. g. in relation to the adequacy of legal protection at the European Patent Office, while contradictions and misunderstandings occur repeatedly. Not least in view of the recent events at the European Patent Office, culminating in the suspension of a Boards of Appeal member by the President, the question arises to what extent the Statements of Position can form a suitable basis for the Court’s decision at all.

Ingve's conclusion is as follows:

The presented Opinions are not convincing. When comparing them to the Opinion from proceedings 1/09, which addressed the existing problems in all their clarity, they rather seem to endeavor avoiding any confrontation with the controversial issues and to seek to easiest way to come to a rejection of the complaints. The impression arises that it is sought to achieve a predefined result, without having well-founded arguments supporting it. This may imply that a serious discussion of subject matter is possibly not wanted, because all the institutions involved anyhow wish to nod the package through.

One decisive aspect will be whether, despite the neglect in dealing with this issue in the Opinion, the CJEU will be prepared to tackle the situation at the EPO. Should they avoid this or not deal with it exhaustively, the focus will shift to the national Constitutional Courts for this examination, especially to the German BVerfG due to its mentioned powers to review ratification statutes. Since ratification by Germany is obligatory for the UPCA to enter into force, a veto by the BVerfG would stop the whole project. Already for this reason, it will be interesting to see how the CJEU will deal with Spain’s actions. Its judgments should be given in spring 2015.

PatLit looks forward to reading Ingve's comments when the CJEU finally gives its decision.