Unitary Patent System – Patents

Until now, the long awaited Unitary Patent System, along with the proposed centralised European patent litigation system seemed like something of a distant reality. However, a number of recent developments have seen the System take one step closer to being brought into effect, and it is hoped that the first unitary patent will be registered in 2014.The Unitary Patent System and the European Unitary (EU) Patent:Part of the proposed system is the introduction of the European unitary (EU) patent. The proposed EU patent is closely related to, but different from the European patent, which is granted under the European Patent Convention. European patents, once granted, become a bundle of nationally enforceable patents, in the states designated by the applicant.At present, European patents (once granted) require validating in each EPO member state for which the patent proprietor seeks patent protection. Validation requires payment of the associated fees, and can require a full translation of the patent specification into the national, official language. Accordingly, validation can be costly, coupled with the need to appoint a national representative to act on applicant’s behalf. Further costs arise annually with renewal fees being payable in each member state in which the patent is validated.It is proposed that the new EU patent will, once granted and at the proprietor’s request, become a European patent having unitary effect. The application and examination procedure will be identical to that of European patents, until such time that the patent is granted. However, it will be during the post-grant phase that the process will differ, with the proprietor being presented with the opportunity to opt for a European unitary patent with unitary protection (in all member states participating in the system), instead of the usual European patent with individual territorial protection. The new process would also provide for the patent proprietor to combine both schemes, i.e. to request a European patent in a selection of member states party to the European Patent Convention and not of the unitary patent system (at the time of writing, of the 27 EU countries, only Italy and Spain are not party to the unitary patent system), and a unitary patent in those states party to the unitary patent system, thus providing the proprietor with much flexibility.The EU patent, if introduced, will provide proprietors with the benefit of a simplified validation procedure, as well as fewer translation and renewal requirements. It is further hoped that the new system will help in making patent protection more accessible, particularly to SMEs, and in making Europe more attractive to inventors, both those within Europe and across the world. The EU patent is awaited with much anticipation, as it has been since it was first discussed way back in the 1970s…The Centralised European Patent Litigation System (Unitary Patents Court):A second aspect of the proposed system is the introduction of a centralised European patent litigation system. The centralised system is intended to provide a mechanism by which patent proprietors will have greater legal certainty, particularly in relation to infringement and revocation proceedings concerning European patents (and the new European unitary patent). It is also hoped that a centralised system will significantly reduce patent litigation costs, eliminating the need to conduct litigation in each member state of interest (and under the current system, where the patent has been validated). And yet given the major advantages such a system would bring, it is the introduction of the centralised European patent litigation system that has stalled the introduction of the unitary patent system as a whole.The reasons for the delay are numerous, not least due to a decision of the Court of Justice of the European Union (CJEU) that the introduction of the European Unified Patent Court (a substantial part of the proposed system) would be incompatible with the European Union.The proposed Regulation on the creation of the unitary patent system may change as a result of this judgement, with the European Council (which represents the governments of the Member States of the European Union) suggesting a number of alterations in a recent statement, published on the 29 June 2012. The European Council recommended the deletion of three provisions, Articles 6 to 8 of the Regulation, which define the acts which constitute infringement of a unitary patent. Deletion of these Articles is thought to remove the possibility of the Unified Patent Court making referrals on substantive patent law to the CJEU. If these recommendations are adopted, the result will likely be that the CJEU will have no jurisdiction in UPC cases. Whether the CJEU adopts this is yet to be seen.The plans were further stalled on the issue of the location of a central divisional court. However a recent development appears to suggest that progress in respect of the introduction of a Unified Patent Court is gradually taking place. In its statement of 29 June 2012, the European Council also reported that the Unified Patent Court is to be headquartered in Paris. It further reported that the central court will be supported by two specialist courts residing in London (for pharmaceutical related cases) and Munich (for mechanical engineering cases). It has been suggested that the Unified Patent Court, if introduced, will have the jurisdiction to hear issues relating to European Patents granted under the European Patent Convention and also those patents granted under the new unitary right.The final decision now rests with the European Parliament, which in combination with the European Council forms part of the two-part legislative framework of the European Union. This too has been delayed, largely due to the recent announcement of the European Council, as set out above.The European Parliament was due to vote on the unitary system on the 4 July 2012, however, the vote was postponed while the European Parliament decides whether the CJEU can be excluded from the unitary system. It is not yet known when the European Parliament will vote on the introduction of the system. Until then, the launch of a unitary patent system hangs in the balance pending the approval of the European Parliament.