ECJ Opinion on European Patent Court System Announced for 08 March 2011

[The Grand Chamber at the European Court of Justice in Luxembourg] The proposal for a unified patent litigation system in Europe is based on a first preliminary Draft Agreement prepared by the Slovenian Presidency in May 2008 [Doc. 9124/08], which was further elaborated and revised to yield the latest version of the Draft Agreement as proposed by the Czech Presidency on 23 March 2009 [Doc. 7928/09]. Due to requests by various delegations, an opinion by the European Court of Justice (ECJ) was requested on the compatibility of the envisaged Agreement with the EU Treaty [Doc 9076/09]. Now, the judical calender of the European Court of Justice announces the opinion on the "Draft Agreement on the European and Community Patents Court" (case Avis 1/09) to be published on 08 March 2011. In May 2010, an oral hearing took place (see official report) and showed that there exist doubts whether a number of essential issues of the Draft Agreement are compatible with the EU Treaty and related EU law. Mr Jochen Pagenberg, current President of EPLAW, was present at the Court hearing and concluded in privat notes
What can be expected from the Opinion of the ECJ? A clear affirmative answer in favour of compatibility of the present Agreement is highly unlikely in view of the persistent questions and serious doubts concerning the lack of judicial EU control over the EPO granting procedure. Beyond this the controversial legal basis between the Member States about the court system as a whole, and particularly with respect to the combined jurisdiction for EU and EP patents will most probably be addressed by the Court and can hardly be resolved to the satisfaction of all Members ...
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