[JURIST] The European Court of Justice (ECJ) [official website] issued a non-binding advisory opinion [materials] Tuesday that the planned European and Community Patent Court (ECPC) is incompatible with EU law. The ruling is a significant setback for EU governments that have been negotiating for a unified EU patent system for over 30 years. The drive to unify the patent process is fueled in part by the complex process of securing a patent for each individual country in the EU, which requires numerous applications and costly translations. In addition, if litigation arises, litigants must take the dispute to every country where an infraction in occurring making enforcement an onerous task [AP report]. Efforts to establish a unified patent system have been opposed by Italy and Spain in part because the current plan allows for patents to be filed only in English, German or French [European Voice report]. The ECJ summed up its major objection to the proposed ECPC:

[T]he envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.

EU officials have been quick to note that the ruling is not fatal to a unitary patent regime, but rather to the ECPC which would have adjudicated disputes arising in connection with patents [AP report] in 38 countries including some countries not part of the EU.

In February, the European Parliament [official website] agreed [JURIST report] to the establishment of a common patent system [press release] despite lack of accord from Spain and Italy. The Lisbon Treaty [text] generally requires a unanimous vote from EU member states, but the “enhanced co-operation” [EU backgrounder] provision allows groups of member states to adopt new common rules when unanimity is difficult to achieve. Lawmakers argue that a uniform patent system is necessary [Bloomberg report] to keep European nations competitive with global rivals like China by lowering patent costs for small businesses in particular. The EU has applied the “enhanced co-operation” provision in only one other resolution. In January 2010, the EU employed the provision to enable some EU countries to work together to create uniform marriage laws [JURIST report] for mixed-nationality couples on the grounds that cross-border divorces are often problematic.