Thursday, 2 September 2010

Reopening of oral proceedings? Not if the Court can help it!

There aren't many areas of patent law that end up before the Court of Justice of the European Union for the very good reason that, up till now, most European patent law is either dictated by the terms of the European Patent Convention (which is not a European Union document) or guided by national law and therefore within the sole purview of national courts. The extension of the life of a patent through the mechanism of the supplementary patent certificate (SPC) is however one area in which the Court of Justice can be, and indeed is increasingly, involved since it is governed by Community law.

Today's decision in Case C-66/09 Kirin Amgen Inc. v Lietuvos Respublikos valstybinis patentų biuras, Amgen Europe BV, a reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania), has already been written up from the point of view of the discretion of newly-joined Member States to adjust transitional provisions to their specific conditions (click here if you like SPCs enough to want to read further ...). There was however an interesting little procedural point, which litigators may wish to bear in mind.

The usual practice in cases referred to the Court of Justice for a preliminary ruling is that there will be a brief oral hearing, following which the Advocate General -- who is a member of the Court -- will give a considered Opinion. This opinion is not binding on the court, but will be accepted to a greater or lesser extent in around 80% of cases. Here, Kirin Amgen was unhappy with the Advocate General's analysis and wished to have a second bite at the cherry. As the court explains:
"17 By letter of 30 June 2010, Kirin Amgen requested the reopening of the oral procedure, stating essentially that the view taken in the Advocate General’s Opinion is incorrect and that new arguments ... have been expounded there. In support of its request, Kirin Amgen pleads the right to adversarial proceedings, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ....

18 Bearing in mind the very purpose of an adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (citations omitted).

19 In the present case, however, the Court, having heard the Advocate General, takes the view that it has all the material necessary to answer the questions referred and that the observations submitted before it related to that material.

20 Consequently, the request that the oral procedure be reopened must be rejected".

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