Intellectual Property EU ruling hurts plan for pan-European patent court

BRUSSELS (AP) -- Europe's highest court on Tuesday dealt a blow to attempts to set up a pan-European court to handle patent litigation, saying it would break EU law. The planned European and Community Patent Court forms part of a broader push to create a more efficient patent system in Europe, where innovators and companies still struggle with different jurisdictions and languages. The European Council, which represents European Union governments, had asked the European Court of Justice to examine the legality of establishing such a court. In a legal opinion, the ECJ said the creation of the new court would mean a significant transfer of power from member states to a new institution that is not part of the EU system. "The agreement would alter the essential character of the powers conferred on the institutions of the European Union and on the member states which are indispensable to the preservation of the very nature of European Union law," the ECJ said. For instance, states and citizens would not be able to appeal decisions on patent infringements at the ECJ, which is usually the final arbiter in EU legal cases. "Europe's highest court seems reluctant to approve such transfer of powers to a new Patent Court, which it considers too independent and not enough subject to the checks and balances which keep the European Union institutions in line," said Geert Glas, an intellectual property expert and partner at law firm Allen & Overy in Brussels. At the moment, alleged infringements of patents have to be challenged in national courts, creating huge costs and confusion, especially for small companies. The European patent court was supposed to handle cases for 38 states, including all EU 27 countries but also states like Turkey and Switzerland. The fact that the patent court's jurisdiction goes beyond the EU was one of the reasons that it was supposed to be set up outside the EU system. "The obstacles identified by the court are major," said Glas. "It will need some serious rethinking of the proposal." The European Commission, the EU's executive, stressed Tuesday that the ECJ's opinion on the patent court would not affect a separate push to create a single European patent, which would prevent innovators from having to register patents in every EU state. "They are two legally distinct issues," said Chantal Hughes, spokeswoman for the EU's Internal Market Commissioner Michel Barnier. Governments are currently in the process of setting up a European patent valid in 25 EU countries, after Spain and Italy blocked previous attempts. Published: Wed, Mar 9, 2011