Work on a ‘Community’ patent started in the 1970s, but the resulting Community Patent Convention was a failure as it was not ratified by enough countries and never entered into force. Years later, an attempt to revive the Convention project also hit the rocks for the same reason.
Spain and Italy argue that the new regime discriminates against their languages- Josette Grech
In 2000, renewed efforts from the European Union resulted in a proposal for a Community Patent Regulation. Yet again, agreement on the details of the proposed regulation was not reached.
Although consensus on the technicalities was not attained, the concept of having a unitary patent has been generally considered an essential step towards creating a level playing field for trade within the EU, thus boosting innovation in the EU. The EU fell by the wayside as a result of the lack of a harmonised patent legislative structure when compared with the number of patents granted by the US and China. The difference was attributable to the prohibitive cost and the complexity of obtaining patent protection throughout the single market since Europe-wide patent protection is possible at the moment only by validating a patent registered with the European Patent Office in each individual member state.
The recent backing by the European Parliament to new patent legislation comes as a milestone in the long-running effort to establish a unitary European patent. The patent package of approved legislative proposals comprises two separate set of rules on the terms of unitary patent protection and the language regime to be adopted for the filing and processing of unitary patent applications. Parliament also approved an international agreement agreed to by the EU member states concerning a new unified patent court system.
All remains subject to ratification by the individual EU member states. Spain and Italy are still trying to oppose the change arguing that the new regime discriminates against their languages. But following a legal opinion issued recently by the Advocate General of the Court of Justice of the European Union, the way has been cleared for these oppositions to be rejected, even though the CJEU has yet to rule on the matter, with a decision expected next year.
The developments are significant. The package is intended to reduce fragmentation of legislation and to establish one forum where disputes concerning the validity of unitary patents can be dealt with. As a result of this new unitary patent framework, inventors will have the opportunity to register their innovation with a single EU authority rather than in each of its 27 member states by filing a single application. The one-step application process for a unitary patent would eliminate the need to seek separate validation in each and every country where protection is sought.
The framework is designed to save time and money. Patent protection will now be obtained across the EU through a simplified procedure for a fraction of the current cost by cutting down on administrative burdens. Applicants currently spend thousands of euros translating their paperwork into each country’s native language. The new rules envisage that applications and approvals can be made in any language and need only be accompanied by a copy in one of three languages: English, French and German. After the unitary patent is granted, no further translations will be required. In addition, reimbursement for the cost of translating the application into any of the three official languages will be available for EU-based small and medium-sized enterprises, non-profit organisations, universities, and public research organisations.
Under the new system, a single patent right can be granted, providing coverage in all EU member states. Following the grant of a unitary patent, a single annual renewal fee will be payable directly to the European Patent Office.
A significant aspect of the unitary patent package relates to the establishment of the new Unified Patent Court, which will have exclusive jurisdiction over infringement and validity questions involving unitary EU patents. The single forum system is intended to increase legal certainty and lower litigation costs. A single court decision with respect to infringement or validity will take effect across the participating EU countries, without the need to pursue costly legal action in several countries simultaneously.
It is anticipated that the first patents with unitary effect could be granted as early as 2014. When implemented, the Unitary Patent and Unified Patent Court will streamline the current complex and costly patent system in Europe.
jgrech@demarcoassociates.com
Josette Grech is an associate with Guido de Marco & Associates and heads its European law division.