The Unitary Patent System: What’s Next?
As widely informed by the press, last week the European Council adopted two important decisions concerning the EU project of a Unitary Patent. First, the member states agreed that the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC) will be located in Paris. However, given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities,classification A), the other in Munich (mechanical engineering, classification F).
Second, an important amendment was suggested to the Proposal for a Regulation for the creation of unitary patent protection: the deletion of Articles 6 to 8. Those provisions govern substantive patent law. It is the opinion of certain academics that an “important share” of the cases litigated before the divisions of the United Court would be subject to referrals for preliminary ruling related to these provisions by the CJEU. As Prof. Dr. Rudolf Kraßer points out this will result in delay, higher cost and workload for all parties and “severely counteract to the goals of the project of enhanced cooperation”. The European Council has followed the opinion of these academics although opinions in favor of the maintenance of those provisions also exist.
Having in mind the great relevance of these decisions, it is time to recapitulate and to briefly explain what are the next steps for the adoption of the Unitary Patent.
To start with it is important to recall that the Unitary Patent will be granted by the European Patent Office – firms will be able to choose to apply for a European patent or a Unitary patent. Such patent will have unitary effects in all the Member State which participate in the Regulation (all the Member States except for Spain and Italy). No translation requirement will be necessary except for cases of opposition. Only the patent claims are to be translated to English and French. During a transitional period no longer than 12 years: a) patents whose language of procedure is French or German shall be translated to English; b) patents whose language of procedure is English shall be translated to the language of other participating Member State. These translations will be required until high-quality machine translation becomes available to ensure the accessibility of patent information.
In order to put this new system into practice, the adoption of three instruments is needed: a) a Regulation for the creation of unitary patent protection; b) a Regulation with regard to the applicable translation arrangements; c) an international Agreement on a Unified Patent Court and draft Statute.
According to a Road Map adopted by the Danish Presidency in May, the European Parliament should have given the OK to the three texts this week. However, the vote was postponed sine die. Such postponement is in response to the Council’s plan to delete Arts. 6-8. MEP Klaus-Heiner Lehne stated that “if the Council did this, the case “would go straight to the European Court of Justice”.
This postponement may certainly alter the proposed schedule according to which a diplomatic conference should be hold in October in order to sign the Agreement on a Unified Patent Court so that it can be ratified by the participating States by the end of 2013.
The first Unitary Patent is expected to be granted by April 2012. However, it would only be possible if an agreement is reached by the institutions so that the European Parliament finishes its blockage to the project. Furthermore, it should be recalled that the CJUE still needs to adopt a decision on the complaints submitted by Spain and Italy on whether the recourse of the enhance cooperation mechanism to adopt the regulations was justified.
The agreement adopted last week is certainly a big step for the consolidation of the Unitary Patent System, a project that is more than 40 years old, but some final obstacles still need to be deleted.
Related Posts:
- The Unitary Patent package, a brief overview
- AG Opinion on “Solvay”: cross-border interim measures in patent disputes
- Modifications introduced into new Spanish Law on Patents regarding the compensation for damages. Special reference to punitive damages.
- Selection of Specialized Courts in Industrial Property Rights for Certain Autonomous Communities in Spain