On December 11, 2012, the European Parliament adopted two draft regulations on the creation of a new unitary patent system in Europe. The new unitary patent system, which is set to be introduced in 2014 has to be granted by the European Patent Office.
This unitary patent, which will coexist with the national patents as well as the classical European patent, will provide legal protection for the applicants in 25 member countries of the European Union through a single administrative step. (Italy and Spain are the two EU member countries that have objected to the system) The unitary patent will be considered as a single patent which does not require validation, including translation, in every member state. It also does not require to be administered nationally in each and every State respectively. This saves the applicant significant hassle in terms of time and money, as massive amounts of money is currently spent translating the relevant paperwork to the languages of the respective European Union member country. Under this system, the applications and approvals need to be made available in only one of the three languages, namely English, French and German.
Moreover, under the current regime the patent holder has to approach the national Courts of each EU member country separately for the enforcement of their rights. However, the unitary patent system envisages a Unified Patent Court whose decisions on validity and infringement will be binding on 25 EU member countries. Such a Unified Patent Court is intended to not only reduce litigation costs but also to help do away with the problems of delayed proceedings and conflicting decisions.
The Unified Patent Court comprises of a Court of First Instance, Court of Appeal as well as a Registry. The Court of First Instance is divided into local and regional divisions as well as a Central division. The Central Division is based in Paris, with branches in London and Munich. (The distribution of cases within the Central Division can be found in Tabular format in Annex II of the Agreement on a Unified Patent Court.) The Court of Appeal is located at Luxembourg.
The unitary patent system has been intended by the European Parliament to make Europe an attractive destination for inventors by reducing delays, costs and other administrative hassles in enforcing patent holders’ rights. However, the system has been criticized on the issues of maintenance fees and forum shopping. The maintenance fee levels of the unitary patent system are currently unknown. In a situation where the fee levels are very high, under the unitary patent system, the inventor will have no option of dropping a few countries in order to pay a lower fee. (This option is currently available to inventors.) The issue of forum shopping is with respect to the risk of certain local divisions of the Unified Patent Court demonstrating a stance favourable to the patentee in order to attract more cases.
The Unitary Patent system is presently being challenged at the Court of Justice of the European Union by Italy and Spain. Their contentions include the argument that the Unitary Patent system would unfairly discriminate against companies that do not work in English, French or German languages. Italy and Spain assert that a consequent result of the system would be that the commercial trade in innovative products would be preferred with companies that work in the above mentioned languages. Moreover, the lack of translations in the respective EU member countries may result in problems when prospective patent applicants have to determine prior art before filing an application. Another major question that is being debated currently is the necessity for a patent in 25 EU countries. This is problematic not only from a maintenance fee perspective, as noted above but also as statistics suggest that there is minimal patenting activity in countries other than England, France and Germany.
As of now, this unitary patent may be requested from 1 January 2014 or from the date of entry into force of the Agreement on a Unified Patent Court.
(For a more detailed analysis of the problems of the Unitary Patent system in EU, readers can refer to this blog post.)