In a non-binding opinion written in July, Juliane Kokott, advocate general at the ECJ, concluded that the proposal does not do enough to ensure the primacy of EU law. She also raised doubts over the language regime suggested by the EU executive.
"As it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties," Kokott said, according to the document circulating in legal circles and online.
An ECJ spokesperson refused to confirm or deny that the advocate general's opinion paper had been leaked but said a final decision by the Court could come later this year.
Nonetheless, the judge's view offers a unique insight into the thinking of the influential Luxembourg court.
Innovation strategy on the rocks
The timing of the leak could hardly be worse. A streamlined patent system is expected to be a cornerstone of the EU's new innovation strategy, which will be published next month.
It had been presumed that the ongoing row over translation procedures was the only major roadblock en route to introducing an EU patent. Last month, the European Commission set out its solution to the language problem and promised to press ahead with patent reform (EurActiv 02/07/10).
However, the ECJ's preliminary view – if confirmed by the Court later this year – will be a major setback.
A spokesperson for the Commission said that it is studying the document which has appeared online and awaits the judgement of the Court.
"Meanwhile, the Commission continues to work to resolve the outstanding issues on the EU patent following the adoption of the Council conclusions in December 2009 on an enhanced patent system in Europe. This includes translation arrangements, which were subject to a Commission proposal adopted on 30 June," the spokesperson said.
Frustration for business groups
Business groups have been lobbying for a single patent regime for decades, complaining that the current system is too expensive and the pace of progress frustratingly slow.
Critics also say the fragmented legal system – which can require companies to defend patents in several national courts in order to protect their intellectual property – is unpredictable. A court in London may offer a different opinion to a court in Copenhagen when presented with the same case, making it expensive and impractical for small firms to enforce intellectual property rights.
The solution to the legal uncertainty was supposed to be the unified patent court, once the ECJ had given its green light. Now, the EU executive will have to find a way of reworking its proposal in the hope of winning ECJ approval.
If that proves technically impossible, the much-vaunted single patent could remain a pipe dream for another decade.
