Green light to the UPCA: a failure for the European Union

Miguel Vidal-Quadras Trias de Bes

Last Friday 17 February 2023 was a sad day for the EU. Germany decided to ratify a treaty that shatters the hope of one day having an EU patent law. The decision to accept a court promoted by certain lobbies was ratified. A special court that deprives the Court of Justice of the European Union (CJEU) of any jurisdiction over patent law and the high courts of the signatory countries of any authority to rule on a right that affects all their citizens.

The Commission has never considered harmonising the patent law of the Member States in its most substantive elements: the creation of the right and its ownership, the requirements for patentability, the scope of protection, the acts of infringement or the exemptions. Unlike trademark or design law, there have been no common rules that would enable the CJEU to interpret a law that is critical for the economy and the market of the member states.

Instead, the Commission has given up on regulating patent law, promoting the consummation of a system that will make it more difficult, if not impossible, to take steps forward in the creation of an EU patent law.

The existence of a regional patent granting body in Europe, which is not subject to the European Union and is a lobby in its own right, has been largely responsible for this. Its political liability is consumed with the actual granting of patents and its success is measured by the number of patents and the profits it makes each year. Located in a member state of the European Union, it competes with the Union to take control of the patent system without being responsible for the economy and the market of the member states.

For the first time, an international court is created for the members of the European Union that is not an EU court. Its judges will not be subject to the scrutiny of a system of control of the democratic judiciary. Whose decisions will not be subject to appeal in the last instance to the highest level of the judicial system of the States or of the Union. Over which the EU bodies will have no authority and which will be exposed to pressure from the respective lobbies, including that of the non-unitary office that grants rights that affect all EU citizens, that strains unitary policies and that ignores whatever the Commission or the European Parliament concludes.

Such a court is born weak: it will tend to confirm the views of the European Patent Office, which is also not subject to the authority of EU courts, national or Community. It will be influenced by its clients, those who will bring actions before it, and it will not bear the burden of integrating the patent system into a broader law, on competition in the market, on the regulations concerning the needs of the citizens, on the coexistence with the rights of consumers, users and patients, on the sensitivity to the law of unfair competition or on the basic civil rights of all citizens of a state. Because its only task will be to know about patents, their validity and infringement.

A new right is created, yet another one, which will interfere with the proper functioning of the market. A right whose birth has been greatly influenced by certain interests that do not go through the creation of a European Union law or a single market.

That was a sad day for the construction of a democratic and European economic system subject to the free will of the citizens of the Union. Certain states, including the founders of the EU itself, have decided to put an end to the dream of the European ideal in a highly sensitive area which affects the root of the economic system itself.