Monday, 23 August 2010

The Advocate General's Opinion: thumbs down for the proposed Court

Here, courtesy of Kevin Mooney (Simmons & Simmons) is an English translation of Advocate General Juliane Kokott's Opinion, on behalf of all the Advocate General, in Case 1/09 on the legality of the proposed European and European Union Patents Court. Readers, please note: (i) this is an informal translation, not an official one; (ii) once it's smartened up it will be posted on the elexica website.

In summary Kristof Neefs (Altius) tells PatLit that
- as for administrative proceedings, the AGs consider that EPO proceedings should be subjected to judicial review (either by the CJEU or an independent court);
- primacy of EU law as a whole should be expressly provided for;
- the current proposal contains insufficient safeguards against violation of EU law by the Patent Courts;
- the proposed language regime is incompatible with the rights of defence in that it is possible that a defendant is brought before the central division where the case will be tried in German, French or English. If these languages are neither the language of the defendant’s seat of establishment nor that of a jurisdiction in which he has developed commercial activities, this would be incompatible with the rights of defence, except if a provision would be included permitting the central division to derogate from the language rule or allowing the defendant to obtain translations of the procedural file.

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