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.
Once more it appears that Europe is on the brink of a unitary patent and common patent jurisdiction. Both the Unitary Patent Regulation and the Unitary Patent Court Agreement have been subject to much political wrangling, so much so that some might say the former has been eviscerated. The conclusion of the Unitary Patent Package has been shrouded in controversy and a number of important legal questions are still pending, questions we address in this article. First, we will briefly retrace the history of the European Unitary Patent since inception (1), examine the Unitary Patent framework (2), then look at the scope of the Unitary Patent right (3) and the legal basis of the Regulation (4). Next we shall turn to the UPC Agreement to set out its main features (5), briefly comment on the language regime (6), and lastly close with some critical comments (7).