The Unitary Patent package, a brief overview
On 31 December 2012 Council Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection and Council Regulation 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements were published in the Official Journal.
Both regulations will enter into force either from January 1st 2014, or from the date on which the Agreement on the Unified Patent Court enters equally into force, whatever is the later date. This agreement is in turn expected to become effective either on the 1st of January of 2014 or as soon as 13 signatory states have ratified it, as long as UK, Germany and France are among those 13.
First prospects estimate the whole system will be fully operational in April 2014, moment on which the first patent with unitary effect is expected to be granted.
The scope of protection of the unitary patent will comprise all the EU Member States with the exception of Spain and Italy. These countries refused to be part of the system as they considered it to be discriminatory for their national interests (mainly because of the language and translation settings of the unitary patent package). A joint claim, still to be decided upon, was issued by these two countries before the European Court of Justice (CJEU). However the Opinion of the General Advocate seems to indicate that the claim will be finally dismissed.
The main feature of this new patent system is that it will deploy uniform effects and protection in every Member State (exceptions excluded) on an automatic basis after the granting of the patent itself (like the current Community Trademark system operates nowadays).
In other words, any unitary patent will only be effective, limited, transferred or revoked in respect of the entirety of the 25 Member States participating within the system. This diverges radically from the current “European” patent system. Nowadays, after a common administrative stage held at the European Patent Office, the European patent is divided into a patent bundle where every single patent has its very own and particular effects for a corresponding Member State.
The application procedure for this new unitary patent will be fully centralized in the European Patent Office in Munich. The official languages of the procedure (and of the entire system) will be English, German and French.
Going a bit deeper into the translation system established, the new unitary patent, once it is granted in one of the official languages will require no additional translation in order to deploy valid effects. However, and for a transitional period of a maximum of 12 years, a translation will be presented in English (in those cases where the patent has been granted in German or French) or in either German or French (in those cases where the patent has been granted in English). After this transitional period, no further translation will be required, unless litigation exists. In this event a translation might be requested into 1.-the language of the Member State where the infringement took place, 2.-the language of the domicile of the defendant, and 3.-the language corresponding to the Court procedure, if this required so.
The new system will enable access to full patent protection for an overall 25 Member States at a cost much lower than the amount required to opt for an equivalent protection level nowadays (4.725 Euros vs. some 36.000 Euros).
With the intention to provide with some uniformity to the overall practical application of this new system, the patent package foresees the creation of a Uniform Patent Court. This will be derived from the aforementioned Agreement on the Unified Patent Court, an international treaty where the 25 Member States of the unitary patent system plus Italy participate.
The cited Court will be competent to deal both with unitary patents and European “regular” patents, being in its tasks bound by European Union Law.
Following the comments from Opinion 1/09 of the CJEU, the Unified Patent Court despite being an international Court, is part of the Member State´s jurisdictions. This compels the Court to comply with EU Law and enables it to resort to a preliminary ruling before the CJEU if needed.
Regarding its composition, the Court will be formed by a First Instance Tribunal with a Central Division (with a central branch in Paris and two sections, one in London and one in Munich and National and Regional divisions) and an appeal Court based in Luxembourg.
Despite the potential breakthroughs and advantages that this new package could have for the European Union, the new system has also been subject of several and pretty harsh critics. For example, the reputed Max Planck Institute has published in the last months a detailed report including 12 reasons that apparently show how the new system is not as beneficial as it might seem.
Related Posts:
- The Unitary Patent System: What’s Next?
- AG Opinion on “Solvay”: cross-border interim measures in patent disputes
- “Neurim”: The European Court of Justice gives green light to supplementary protection certificates in cases there is more than one Authorization for commercialization
- SPTO develops plans to accelerate the adoption of Report of State of the Art for national patent applications