In a time where Europe and especially the SMEs in Europe need more than ever an EU one stop shop, unitary, patent protection for their inventions, nobody seems to be able (or willing?) to cement unity in opinion – what else is new in Europe? – on this much wanted EU patent reform. Politicians, academics, practitioners and judges alike seem to be unable to cement agreement and much needed political action to create the Unitary Patent after decennia of discussions, proposals, counterproposal, criticism, or flat out obstruction.
Meanwhile the debate among practitioners, litigators, judges and academics continues. The latest in this chorus of debaters is an opinion from Prof. Robin Jacob who provides his views on what he calls a “key aspect” of the proposal to create a Unified Patent Court and a Unitary Patent. As will be known the plan is for an international agreement, a Statute for the Court and an EU Regulation. Aspects of the latter subject gives rise to matters on which prof. Jacob, former Appeals Court in the UK, expresses is opinion. In particular he argues that those aspects of the proposed Regulation which make EU law govern substantive patent law. They are contained in Arts 6-8, reproducing Arts 25-27 of the, failed, Community Patent Convention of 1989.
“Clearly if these provisions are contained in a Regulation they will become part of EU law and thus subject to the obligation on the proposed new court of submitting questions of interpretation to the Court of Justice of the EU. Two questions arise (a) are Art. 6-8 necessary as a matter of EU law and (b) are they desirable?”