Options Available After Knockdown of Unitary European Patent Court by March 8 CJEU Opinion

[CJEU President Vasilios Skouris] On 8 March the Court of Justice of the European Union (CJEU) handed down its long-awaited opinion on the compatibility of the "Draft Agreement on the European and Community Patents Court" [Doc. 7928/09], which basically expresses the Commission's 2007 vision to replace the EU-independent European Patent Litigation Agreement (EPLA) and implement an EU controlled patent litigation system called European and EU Patent Court (EEUPC). As reported here and elsewhere (see below blog citations), the Judges broadly rejected the Draft Agreement for two essential reasons, as expressed e.g. in §§79, 88, 89 of the opinion: The envisaged (unitary) court would take the place of national courts and tribunals in the field of patent lititigation/validity and thus deprive those courts of the power to request preliminary rulings from the CJEU in that field; The unitary patent court would have the duty to interpret and apply EU law, while a breach of EU law could not be the subject of infringement proceedings nor could it give rise to any financial liability on the part of one or more Member States. Surprisingly, the CJEU did not consider the objections as raised in the Advocates General's preliminary Statement of Position (see also here) but went far beyond those observations by more severe objection. This is somewhat disappointing especially since an opinion on the AG's objections to the language regime could have provided some clarification for the parallel Unitary Patent project, that has received green light by the EU Commission on March 11. So, what options are available now. Between the two poles of a CJEU-independent patent system and a closer integration of the Unitary Court into the EU's legal order, the PatLit and Bright Spark blogs are, like many others, not in favour of the latter option, since "everyone involved [i.e. industry, patent profession and even the EU Commission, as noted on the ipeg blog] is absolutely convinced that the system should not allow the ECJ itself to become involved in substantive patent law"; "the Court of Justice does not have the necessary expertise". Especially, "the patent world does not want the same court system that was established for community trademarks", as added on the Kluwer blog. This dilemma between the CJEU's and industry's requirments, however, does not appear to be a good basis for drafting alternative solutions that circumvent the CJEU's objections. On a similar line, Jochen Pagenberg, current EPLAW President, suggests to carefully examine, "whether the envisaged unitary patent covering only 25 EU member states under enhanced cooperation cannot be subject to a Court System outside the EU legal order", as suggested by the Advocates General, which would effectively be a revival of EPLA. For good reasons, Mr Pagenberg has some sympathy for EPLA, as e.g. expressed in an article in the January 2011 edition of AIPPI e-news, where he presented EPLA as an alternative…