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Patent pending

The ECJ has really got its knickers in a twist this time, writes Paul Stanley

26 April 2011

The ECJ’s jurisdiction to give opinions has often been a useful source of statements of general principle concerning the constitutional order of the European Union. So it was in Opinion 1/09 (Full Court, 8 March 2011), in which the ECJ has advised that proposals for the creation of an international patents court to superintend a revised European patents system would be incompatible with the treaties.

The European Patents Convention of 1973 establishes a European Patent Office. The patents issued take effect as a bundle of patents, each governed by the law of a particular contracting state. It was proposed to modify this system by making the European Union party to the convention, and providing for the issue of a true ‘European patent’ – not just a bundle of rights, but a source of rights in itself, in both the EU and in other (non-EU) contracting states.

Part of the proposal was to create a patent court; an international court which would have exclusive jurisdict...

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