The European Council had referred to the European Court of Justice (“ECJ”) a request for an opinion on the compatibility of the current Draft Agreement aiming to create a Unified Patent Litigation System with the European treaties. The case was argued before the full court (27 Judges, 8 Advocates-General) on 18 May 2010. On 10 July 2010, the Opinion of Advocate-General Kokott, on behalf of all the Advocates-General, was delivered. The Opinion is not (yet) available in the ECJ’s website. However, the Opinion has become available online in the original French version as well as in an unofficial English translation.

For more information on the proposed Agreement to create a Unified Patent Litigation System for the European Union with the European treaties, see the article here:

The Opinion concludes that the Draft Agreement in its current form is incompatible with the European treaties; however, the shortcomings of the current draft are considered to be rectifiable:

First, the current provisions ensuring that the proposed European and EU Patent Court (“EEUPC”) fully applies Union law are insufficient.

Second, no mechanism guaranteed observance by the EEUPC of its obligation to refer issues of interpretation or validity of Union law to the ECJ and, more broadly, observance of Union law as such.

Third, the language system of the central division of the EEUPC impaired the rights of defence, a fundamental principle of Union law. Under the current draft, an action against an entity of a country which does not participate in any local or regional division of the proposed courts of first instance would be brought before the central division and the language of the proceedings would be that of the patent, namely German, English, or French. Fourth, no effective control by an independent court existed over decisions by the European Patent Office (“EPO”) refusing the grant of a European patent.

The Advocates-General comment on various possible solutions, in particular to extend the competence of the EEUPC to include appeal proceedings against decisions of the EPO.