04 July, 2012

Unitary Patent Protection in Europe

Unitary Patent Protection in Europe

For more than 30 years European industry has been striving to establish a unitary patent right, effective throughout the European Union. A principal stumbling block has been the insistence by many countries that their domestic official language be used; in practise meaning that the entire patent specification needed to be translated into numerous languages at significant cost.

It would seem a breakthrough has been achieved. Two recent developments hail the arrival of a truly unitary European patent system:

  • Legislation establishing the unitary patent scheme
  • A centralised European patent litigation system

The scheme is grafted onto the existing European Patent Convention. Presently, once a European patent is granted it is necessary to validate (i.e., register) the patent in individual states (countries) where patent protection is desired. This is where significant translation costs can be incurred.1

Under the scheme, the patent holder will now have the choice of opting for unitary patent protection, by which the single European patent will automatically have force in the participating EU member states.2

The present 'validation' system will remain in place as an alternative, and will need to be used for countries that have opted-out of the unitary scheme.

It is expected that country-by-country patent protection will also continue to be available as a further alternative, and such an approach well may be more cost-effective if patent protection is sought in only one country.

Centralised European patent litigation system

Agreement has been reached to establish a centralised European court - the Unified Patent Court - having exclusive jurisdiction for determining questions of infringement and validity of European unitary patents. The Court will be headquartered in Paris, with satellite courts in Munich and London.

The work of the Court divisions will be organised by technical subject matter. For example, patent cases dealing with pharmaceutical products will by conducted only in the London court.

What's the benefit?

The benefit to Australian users of the international patent system is potentially to significantly reduce the cost of obtaining patent protection in the European Union.

However, our experience has been that Australian enterprises usually will be interested in protection only in a hand-full of EU countries, in which case the unitary patent scheme might offer only a modest cost saving, given that the significant costs of the pre-grant processes of the European Patent Convention remain unchanged.

But when?

All going well, the European Parliament and the European Council will enact the necessary legislation and regulations so that the scheme and Court might come into effect in early 2014.

Author: Robert Miller, Principal

1Although, the so-called London Agreement has reduced these costs in France and Germany already.
2Some EU countries may opt-out - it is presently unclear which countries may do so.

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