The Advocates General's Statement on the Planned Unified European Patent Court System (updated)

Advocatus Diaboli interwiewing witness The first persons that were honoured by the Christian Church as saints were their early martyrs. Later also other people were recognised as saints upon approval by a local bishop. In medieval times, the act of canonization by which a deceased person is declared to be a saint was reserved to the Holy See as a conclusion of a long process requiring extensive proof on the candidate's exemplary and holy life. In order to formalise and to improve the canonisation process, Pope Sixtus V. established the Office of the Promotor Fidei in 1557, popularly known as “Advocatus Diaboli”, who is a canonical lawyer whose task is to make the argument against canonization of a candidate by looking for weaknesses in the evidence for the miracles attributed to the candidate. From a more global point of view, the person taking the role of an “Advocatus Diaboli” assesses the quality of the original argument and, by this, either improves or abandons the original position. Now, within the more profane context of European patent politics, the Statement of Position by the Advocates General regarding the request of the EU Council for an opinion of the Court of Justice of the European Union (CJEU) on the planned European Patent and the European and EU Patent Court (EEUPC) has made publicly available. While the Statement says that it has been presented already on 2 July 2010, the general public had to be patient until 19 August 2010 when the eagerly awaited Advocates General’s Statement has finally been found and published on the EPLAW blog (see Opinion 01/09, Statement of Position, originally in French or informal English translation). It is amazing how such important documents of EU authorities are “published” in a hide-and-seek way so that it takes another six weeks to find them on some EU internet servers. I have to agree with a related remark on the IPJur blog, according to which these are “childish games played by interested circles inside of and close to the EU Council in a futile attempt to withhold such important documents from the eyes of the general public”. Anyway, much like an Advocatus Diaboli in canonical law, the Advocates General identified the weaknesses of the European Council’s Draft Agreement of 23 March 2009 (Doc 9076/09), and defined the conditions under which “canonisation” of the proposed European Patent Court System to the heavens of EU treaties may be obtained. As reported earlier, the original request for an opinion of the CJEU on whether or not the envisaged agreement on a unified patent litigation system is compatible with the provisions of EU treaties was made by the EU Council on 6 July 2009. A preparatory oral hearing of the CJEU took place on 18 May 2010 (see official report) and showed that there exist reasonable doubts on The compatibility of the Draft Agreement with the Lisbon Treaty under consideration of whether treaties with third party states are required for the functioning of th…