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Community patent and its enforceability

The idea of a Community Patent, which provides for a unitary patent throughout the EU, dates back to several decades ago, but until now that idea remained unfledged.

The idea of a Community Patent, which provides for a unitary patent throughout the EU, dates back to several decades ago, but until now that idea remained unfledged.

The ministers of economy of 25 member states of the European Union have given the green light for the adoption of a Community Patent. This patent will be valid in 25 EU member states and is expected to enter into force in 2014.

The idea of a Community Patent, which provides for a unitary patent throughout the EU, dates back to several decades ago, but until now that idea remained unfledged. At the moment the procedure for obtaining a patent is unitary only in the sense that there is a single application and granting procedure with one office, namely the European patent office, handling requests for European patents.

This naturally saves time and money for applicants. However, once the request is upheld, the European patent breaks down into a bundle of national patents, each governed by the domestic laws of the EU member states. The result is not, as one would wish, that of an EU-wide patent.

The future unified patent system, with equal applicability in all the member states (barring Italy and Spain), represents a breakthrough for the industry. Its distinguishing features are its unitary and autonomous qualities. Its benefits are principally the elimination of fragmentation that exists under the present patent system, lower fees, cutting risks of forgery and centralisation of disputes into one single jurisdiction. A corollary to this is a single court empowered to hear and decide such disputes.

Interestingly, two days before the decision to harmonise patents with a unified system at EU level, the European Court of Justice (ECJ) stopped the EU Patent Court in its tracks. This EU Patent Court was foreseen as the specialised court, which would hear litigation related to the European patent and the future community patent. Currently, when infringement arises, the patentee is obliged to litigate under each territorial patent right separately, even though the invention claimed by the patent is the same in every case.

To redress this unsatisfactory situation, the Council of the European Union drew up a draft international agreement with the objective of creating this court, which would have exclusive jurisdiction to hear actions in the field of patents, including actions for infringement of patents and actions for damages or compensation.

The ECJ declared that through the creation of that court, national courts and tribunals would not be enabled to make referrals to the European Court for a preliminary ruling in the field of patents. The ECJ held that the EU Patent Court would have the right to interpret EU law, a right reserved to the Court of Justice. Accordingly, the Court held that the draft agreement is incompatible with the provisions of EU law.

This does not mean that a coherent pan-European patent litigation system is out of the question. The indications are that the European patent office and the Commission will continue to look to find the proper vehicle for a centralised litigation system.

Another factor which may hamper the potential of a truly unitary patent system is the fact that member states of the EU are allowed to opt out of the common scheme. Unitary patent protection may become available in most EU countries but not be in others such as Italy and Spain that have already opted out. Therefore leaving some countries out of the unitary patent protection equation brings into question the viability of the whole project.

For now, the approval of a European patent system is already a step forward in the right direction.

[email protected]

Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.

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