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European patent law: a foreseeable future in the wake of the European Court of Justice Opinion 1/09 on the compatibility of the Draft Agreement creating a unified litigation patent system with the founding European Treaties?

Erika Ellyne

Keywords: European patent; Community patent; unified patent; unified European litigation system; European patent law; compatibility EU law; EPO

On 8 March 2011, the Court of Justice of the European Union (CJEU) rendered its opinion on the compatibility of the Draft Agreement on the Creation of the European and Community Patent Court with the European Union Founding Treaties. This Opinion was an important milestone in the creation of a Unified European Patent Litigation System and Unified European Patent (recently termed the European Patent Package). Europe is now closer than ever to completing this process. This paper will first set the stage by outlining the current legal context (section 1). Second, it will review the findings set out in the 1/09 Opinion (section 2). Third, it will examine questions addressed by the Advocate General (section 3). Fourth, it will introduce the response of the Commission and the amendments made to the Draft Agreement (section 4). Fifth, it will examine the contention linked to the Unitary Patent Regulation (section 5). In closing, we will comment upon the relationship between the EU legal order and the European Patent Package (section 6). Some issues remain unresolved, in particular the incorporation of articles 6–8 of the Unified European Patent and the treatment of the prosecution phase, thus for now the future of the European Patent Package remains uncertain.

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