Forty years of negotiations have finally come to a close with the recent signing of an agreement for the creation of a new European unitary patent system. With 24 participating member states, it is envisaged that this new system will make life easier for those people or enterprises seeking to patent their invention across Europe.
The current European system made patent registration up to 60 times more expensive in Europe than in China
Patents grant an exclusive legal right to develop and exploit an idea for a limited period of time, ensuring innovators benefit from their inventions. The current European system made patent registration up to 60 times more expensive in Europe than in China. Under this system, patents had to be registered separately in individual EU countries and there was no single jurisdiction for disputes.
Indeed, any proceedings in relation to European patents could be subject to diverse national laws and procedures with both claimants and defendants bearing the risk of multiple litigation actions in a number of countries on the same patent issue. The new system now provides a one-stop shop for registering and protecting patents within the EU, potentially translating into a saving of €150-€190 million in costs annually.
Both enterprises and individuals will soon, on the basis of a single application, be able to obtain a patent that has effect in the majority of member states. They will also have access to a common litigation system to process any actions for infringement or invalidation of that patent, avoiding multiple court cases on the same patent in different member states.
The functions of the European patent court have been divided between the three countries which were eager to host it, namely, France, Germany and Britain. The functions of the court shall be divided between these three centres, depending on the type of patent.
The court’s headquarters will be in Paris, with some functions in London and Munich. Infringements of patents in life sciences will be heard in London, while engineering and physics-related cases will be dealt with in Munich.
Three countries have refrained from signing the agreement setting up this unitary patent system whereas Italy signed the agreement, though with the understanding that it will not participate in the new patent scheme.
Spain refrained from signing the agreement, citing the new patent system not giving due recognition to its language as the main reason for so doing.
Bulgaria refrained from signing until certain domestic administrative matters are resolved whereas Poland also decided not to, at least temporarily, sign the agreement due to the potential negative impact of the unitary patent to its economy.
The new European unitary patent system is now envisaged to come into force next January 1. The complexity of establishing a unitary litigation system with jurisdiction for so many countries with different legal systems and languages is not something which can be underestimated.
Indeed, the signing of an agreement for a unitary patent system can be seen as a historic achievement for Europe’s single market, though questions regarding the practical implementation of the system still remain.
This more affordable Europe-wide patent protection scheme will hopefully encourage EU businesses to increase their innovation activity and could prove to be of greater benefit for SMEs who often have limited resources.
Though the proof of the pudding is in the eating, it will also potentially attract more investors to the European market, helping to give Europe’s economy a much-needed boost.
mariosa@vellacardona.com
Mariosa Vella Cardona is deputy chairwoman of the Malta Competition and Consumer Affairs Authority and a member of the National Commission for the Promotion of Equality.