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14 April 2011

European Commission Formally Proposes European 'Unitary Patent'

European Commission Formally Proposes European 'Unitary Patent'

The European Commission published on 13 April 2011 a proposal for a regulation which would allow for European 'unitary patent protection'. In the wake of the many failed attempts to get the Community patent off the ground, the Commission has responded to a call from 25 Member States for a unitary European patent. The unitary patent would not be a stand alone patent, but would simply represent a more streamlined and cost effective way of validating a European patent granted by the EPO.

According to the Commission, the current system for gaining patent protection throughout a significant part of Europe is very expensive and complex. At present, the Commission estimates that the cost for validating a European patent in 27 of the EPC member states is €32,000. Under the new proposals, the cost of a European patent with 'unitary effect' in 25 Member States would be greatly reduced. After a transitional period where the cost would fall to below €2500, the projected final cost would be in the region of €680.

According to the Commission:

  • Holders of European patents can apply for unitary patent protection for the territory of 25 Member States at the EPO. The patent will ensure the same level of protection for their inventions in all 25 countries.
  • Patent applications can be submitted in any language, however, building on its existing working procedures, the EPO will continue to examine and grant applications in English, French or German (the official languages of the EPO). For applicants residing in the EU who file their patent application in a language other than the three EPO languages, the cost of translation to one of the official languages of the EPO will be compensated. Finally, after the patent is granted, the patent claims defining the scope of the protection are to be translated to the other two official languages of the EPO.
  • For a transitional period of maximum 12 years, European patents with unitary effect that were granted in French or German will need to be translated to English. The ones granted in English will need to be translated to another official language of the EU. These translations will be required until high-quality machine translation becomes available to ensure the accessibility of patent information. The additional translations during the transitional period will directly help the development of high-quality machine translations.

The draft regulations will now pass to the Council and the European Parliament for consideration. Clearly, if the proposals are accepted and a regulation is enacted, the cost of obtaining patent protection throughout Europe may be reduced significantly. It is also noteworthy that under the proposal, any applicants residing in the EU who file their patent application in a language other than the three EPO languages can apply to be compensated for the cost of translating the application into one of the official languages of the EPO.

At present, Spain and Italy are not participating in the 'enhanced cooperation' for the unitary patent. Therefore, should unitary patent protection come into force without the participation of these two Member States, applicants would have to validate the European patent in these states independently. Despite this, the proposed reduction in the cost of obtaining patent protection throughout a significant proportion of Europe is certainly a step in the right direction for applicants.

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