The title is itself an eloquent summary of the author's view of the situation. In the concluding passage of the final part of his piece, headed "Consequences and remedies?", he writes (with PatLit's emphases added in red):
"3. No segregation of unitary patent and court system
It would certainly require some time, negotiations, expert discussions and perhaps even a user survey before the new goals will become clear. It would therefore be a dangerous mistake to segregate now the legal instruments for the Unitary patent from the discussion of the court system. If one talks to users one will hear that they will not file one single Unitary patent as long as there is no court system in place. The above considerations show that it may still be a long way with a high probability of failure. Therefore, it would certainly not be wise to risk another defeat for a project as important as this.
It remains that the CJ obviously has closed the door for joining non-EU countries in the patent litigation system as it has been discussed so far. It has also expressly excluded EPC patents from its Opinion. Therefore the solution of an international court for EPC patents – at least as a first step for a common international patent court in Europe – comes again into focus, since the serious political and legal restrictions of the EU rules would not apply.
Users should therefore urge the Commission and the member states not to hastily conclude the Enhanced Cooperation agreement without having found an acceptable solution for the litigation system . In this context it should be examined in particular how the rules envisaged under the Unitary patent could prevent the result that substantive patent law, not only as far it is now contained in the EPC, would become part of the EU legal order so that patentability requirements, questions of patent scope etc. would be interpreted in the future by judges without patent experience. Also this question is a serious concern of users and requires a thorough debate before any project can be properly evaluated by industry. It is difficult to accept if under an international court a body of generally accepted EPC case law is further developed which a decade later is threatened to be overturned by a court system which is intended to create its own substantive patent law. Such strategic and organisational questions must also be touched now so that the overall aim is not lost out of sight".