Unitary Patent Information Series (Article 1) - Setting the scene

15 五月 2013

Setting the scene

The European Unitary Patent and the Unified Patent Court – a single European patent which has unitary effect across all participating states and a court able to give judgements with binding effect throughout all participating states - have been in prospect for decades. During this time the costs of patenting across Europe have become so out of step with the comparable costs in America, China and Japan as to be a deterrent to use of the European patent system by both enterprises within Europe and further afield. There are, therefore, compelling economic reasons to move to a simpler system.

Last year the EU finally found the political will to make the Unitary Patent (UP) and the Unified Patent Court (UPC) a reality.  Because not all European member states want to be a part of the Unitary Patent (with Spain and Italy being the notable dissenters), the legislative procedure for “enhanced cooperation” has been used (under which a minimum of nine EU member states are allowed to establish advanced integration or cooperation in an area within EU structures without the other member states being involved).

There’s a lot we don’t yet know about the new Unitary Patent regime - including when exactly it will begin and what it will cost applicants and patentees. There is still a small possibility that it may not come about at all, as Spain and Italy (who have refused to participate) have challenged the legality of the use of the enhanced cooperation procedure before the European Court of Justice (ECJ). The ECJ has recently rejected the first two complaints, whilst decisions on the remaining two complaints (both filed by Spain) are awaited. But assuming the new regime does go ahead, we will eventually have a new European Unitary Patent package that will exist alongside the current “bundle of rights” system.

Many details of the UP package have already been agreed upon and are set out in European Council instruments that have been approved by the participating states and the European Parliament. In particular, we know that it will comprise the Unitary Patent itself (implemented by the “Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection”, hereafter the UP Regulation), translation arrangements (implemented by the “Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements”, hereafter the TA Regulation), and a Unitary Patent Court (implemented by the “Agreement on a Unified Patent Court”, hereafter the UPC Agreement).

We are currently waiting for the ratification process to get underway. Since the legal steps involved in ratification differ from state to state, it will almost certainly be several years before the required 13 signatures are obtained so that the UP package can enter into force. In the meantime, we expect the release of further information on costs and procedures as the relevant committees start their detailed work.

The rest of this series of articles will look in detail at what has already been decided regarding the three elements of the UP package. It will also discuss the transitional arrangements that will exist for a time after the UP has entered into force, and finally it will consider the strategic implications of the new regime for patentees and for businesses active in Europe. The next instalment (due to be published here in mid-June) sets out the details of how the unitary patent will work.

Haseltine Lake is aware that the Unitary Patent Package will present our clients with both risks and opportunities.  As more detailed information emerges about how the new system will operate, we will keep you fully appraised and will work with you to consider the impact of the new regime on your competitive IP strategy. Further articles in this series will be published here over the coming months (come back in mid-June to find out how the UP itself will work), and any new developments will be reported in our news section. We anticipate that further information may become available as follows:

•Further information on level  of UP fees – mid-2013
•Final version of UPC Rules of procedure – end of 2013
•First ratifications of UPC Agreement – end of 2014

David O'Connell
David O'Connell
位置: 布里斯托(英国) 荷兰(荷兰)
Robert Margue
Robert Margue
位置: 慕尼黑(德国)

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