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IP Cases & Commentary – Details

11 August 2011

European Unitary Patent Moves A Step Closer

Aylsa Williams

Updated 11 August 2011

On 27 June 2011, The Competitiveness Council of the European Union published two agreed draft Regulations which pave the way for the long awaited creation of the European Unitary Patent (sometimes referred to as the European Patent or EP Patent). The proposed regulations now need to be approved by the Council of the European Union and the European Parliament in order for the unitary patent to come into effect. It is possible that this could now happen within two years.

The unitary patent has gathered growing support within the EU and is supported by 25 of the 27 member States with only Spain and Italy opposed to its implementation.  This is based on the language requirements which they believe will disadvantage them.  In this respect, the Italians have referred a case to the ECJ [C-295/11] seeking annulment of the Council’s decision in relation to the unitary patent arguing, amongst other things that the Council has acted beyond its competency and that the decision introduces a barrier to trade between Member States and discrimination between undertakings.

Unitary Effect

The first proposed regulation relates to the implementation of enhanced cooperation in the area of the creation of unitary patent protection. The stated aim of the unitary patent is to foster scientific and technological advance and the functioning of the internal market by making access to the patent system easier, less costly and legally secure. Under the proposed unitary patent system, applicants will still have the option of applying for national patents directly in any of the member states, or, as now, applying centrally at the European Patent Office (EPO) for a European patent which upon grant results in a bundle of national patent rights in each EPC member state where the patent is validated. However, the proposal allows that European patents granted by the EPO should, on the request of the patent proprietor, have unitary effect. This would result in a single right that covers all of the Member States party to the enhanced cooperation agreement. The applicant would still be able to validate the patent separately in Spain and Italy which are not party to the agreement and in countries such as Switzerland which are party to the EPC but not Member States of the EU. In order to take advantage of the unitary patent it is proposed that the proprietor would simply need to request unitary effect no later than one month after mention of grant of the patent is published in the European Patent Bulletin.

Such a unitary patent should provide uniform protection and have equal effect in each participating Member State. Consequently, a European patent with unitary effect should only be limited, transferred, revoked or lapsed in relation to all states. However, it will be able to be licensed in respect of individual territories or parts thereof.

It is also proposed that the unitary patent be subject to a single renewal fee payable centrally to the EPO. The level of the renewal fee will reflect the size of the market covered and be similar to the level of the renewal fees for a European patent taking effect in the average number of member states. The level of this fee has not yet been set, however, if the patent is only of interest in a limited number of member states it may be more economical to validate the patent nationally in the states of interest.

Translation

The second proposed regulation relates to implementation of enhanced cooperation in the area of the creation of unitary patent protection with regard to translation arrangements. The purpose of this regulation is to make the translation arrangements for European patents with unitary effect simple and cost effective with the aim of stimulating innovation and benefiting SME’s. It is hoped that the translation arrangements will make access to the patent system easier, less costly and less risky.

The draft regulation states that once the European Patent has been published in one of the official languages of the EPC (English, French or German) and the claims translated into the other two languages no further translations will be necessary.

However, during a transitional period lasting 12 years from the introduction of the regulation patents published in English will be required to be translated into any other official language of the European Union and applications in French or German will be required to be translated into English. Additionally, in order to facilitate access to unitary patents for SME’s, the patent application will be able to be filed in any official language of the Union and translation costs will be reimbursed. It is hoped that after this transitional period high quality machine translation will be available so that the unitary patent can be easily translated into the languages of all the Member States party to the agreement. The EPO have taken on the task of producing such high quality machine translation software.

Unified Patent Court

A further Draft Agreement on a Unified Patent Court has also published. This court will be required in order to allow enforcement of a unitary patent across Europe. However, the European Court of Justice (ECJ) has recently ruled that a European court set up outside it’s jurisdiction for litigating a unitary European patent is not compatible with the EU Treaty.

The value of a unitary patent that cannot be enforced across the EU is questionable. The Commission are considering how to proceed in establishing a Unified Patent Court which complies with the opinion of the ECJ. Until this is established it seems unlikely that the unitary patent system will supersede the present European patent system.

 

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