The Unitary Patent Package, the Court of Justice, Union Law & a further response to the academics

BIE juni 2015, p. 134-141, Wouter Pors: “Does this mean that all of the concerns expressed by the academics, especially in their reply, are no longer valid? No, that is not the case. Indeed, even though the scope of the CJEU’s reasoning was of course limited by the grounds for the appeals as filed by Spain, it seems that all the relevant issues of Union law with regard to the two Regulations were addressed in the judgments. Of course, the judgments themselves will be open to academic criticism, but that will not change the legal situation for the Unitary Patent Package. Let’s however take a closer look at some of issues tabled by the academics.

The fact that the UPC system is held to be in conformity with Union law, opens up new possibilities. In my opinion, the UPC system is better than the current system for the enforcement of Community Trademarks, Community Design Rights and Community Plant Breeders Rights. Enforcement of such rights through the national courts in my view is problematic, since these courts all have different approaches, different levels of experience and different time schedules for concluding litigation. Besides, even though they handle substantive Union law, there is no central appeal to a Union Court; referring questions on the interpretation of the various Regulations is not the same as an appeal. The CJEU is not in a position to set best practices for all relevant issues in the same way the UPC Court of Appeal can. It would be much better to give exclusive jurisdiction to a single – but two-tier – supranational court that can build thorough experience in handling such cases. In practice, parallel litigation in various countries on the same right – or rights that form part of the same bundle – is much more common in patent law than in trademark or design right law, which may explain the greater sense of urgency on the part of the patent industry to develop a single jurisdiction with a single court, but basically this is equally important for all unitary intellectual property rights. And by the way, a training program consisting of classroom courses, though necessary, cannot in itself replace experience. The UPC training will include internships at experienced courts and maybe even more important, less experienced judges will sit in UPC panels with very experienced judges, which will provide for a more consistent approach. That can never be achieved in an enforcement system that relies on the national courts throughout the EU.”