Hartmut Pilch, founder of the FFII, had the right vision in 2007 about the EU-EPLA project. Here is what he said about the future specialized patent court in Europe:
I don't think EU joining EPC would automatically mean that ECJ can intervene on substantive patent law questions.
If there is a ECJ above the EPJ, then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself or maybe to the Commission, member states and the EP.
After the EPJ system is already burdensome enough for SMEs. It's not reasonable to demand that there should be a second court above the EPJ at the European level.
In the EU Trademark, the ECJ is in charge, and it is acting in fact like a central EU trademark court. There is no separate ETJ.
Even if patent jurisdiction was handled by an ECJ patent senate, that would still mean concentration of judicial power in one single point of failure and elimination of the needed corrective of diversity. At best, the ECJ might be a little bit more independent from the EPO world than the currently envisaged EPJ, but it would still be a specialist court consisting of patent professionals.
If the EU joins the EPC, there is still no possibility of revising the EPC by co-decision procedure. Legislative power is, on the contrary, firmly placed into the hands of the Commission and Council only, in that case, and any ECJ pronouncement on the EPC would also be less meaningful than an EPJ pronouncement, because only the EPJ can speak for all the contracting states of the EPC.
Harmut Pilch, 2 May 2007