The Court of Justice for the European Union (CJEU) has dealt a blow to proposals for a single EU-wide patent system by ruling that a single litigation process on disputes would be "incompatible" with current EU treaties.
Several member states in the EU, including the UK, have backed proposals for such a system in order to make it easier for firms to offer innovations across the region with a simple legal system for protection against intellectual property theft.
This call for a single patent received a boost in February when the European Parliament voted in favour of the system for all member states.
However, the decision by the CJEU means the system would be left without a single means of legal recourse, effectively undermining the basis of the system by making enforcement of any patents a costly and time-consuming process.
The European Commission said it would work with the relevant authorities to consider a workaround to the issue.
Will Cook, a partner at law firm Marks & Clerk, said the decision by the CJEU would be a huge disappointment to the many groups that had backed the proposal, and was a step backwards for Europe.
"The CJEU has poured cold water over the proposals for a unified patent litigation system, which have otherwise been widely supported by industry, judges and patent professionals alike," he said.
"Its verdict is a huge step in the wrong direction for those frustrated by the existing diverse, complicated and varyingly expensive national systems."
Cook warned that, while the single patent system could go ahead in theory, it would now suffer from a lack of a guaranteed litigation process.
"From an enforcement point of view, even if the community patent proposals go ahead, that patent seems likely to wither in the glare of uncertainty as to how involved the CJEU will become at appeal level," he said.
"For the unitary court to work there must be confidence that any final court of appeal will implement clearly and consistently the technical and specialised patent law covering the jurisdictions in question."
Cook added that as there was no way to enforce a community patent across the EU, or even in several countries at once, most nations that adhere to a single patent system would still use their own enforcement system anyway.
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