14 December 2012

Unitary Patent and Unified Patent Court Look Set To Go Ahead

Earlier this week, the EU Council and the European Parliament adopted a package of proposals creating unitary patent protection – a single, EU-wide patent – and establishing a unitary patent court. In a separate development, the legal adviser appointed by the European Court of Justice delivered an opinion which, if followed by the Court, will mean that a potential barrier to the creation of a unitary patent system will have been avoided.

The unitary patent package includes two regulations and an agreement on the establishment of a Unified Patent Court (UPC). One regulation concerns unitary patent protection and the other regulation sets out translation arrangements for the unitary patent.

Under the new regulations, European patents having unitary effect in participating states can be granted by the European Patent Office. At grant, the proprietor can request that a European patent has unitary effect in participating states rather than designating individual countries. Furthermore, only one translation is required at this stage and a single renewal fee is payable annually to the European Patent Office rather than multiple fees being paid to individual national patent offices.

The UPC agreement sets up a specialized patent court system with exclusive jurisdiction for European and unitary patent litigation.  It includes a Court of First Instance made up of local and regional divisions as well as a central division having its seat in Paris and sections in London and Munich, and a Court of Appeal located in Luxembourg.

Not all EU states have signed up to the proposals. Spain and Italy have objected to the translation arrangements and have brought actions at the Court of Justice against the EU Council with a view to blocking a decision authorizing the other EU member states to pursue elements of the unitary patent package without them.

The developments this week signal movement towards the proposals becoming law.

At a meeting of the EU Council in Brussels on Monday 10 December 2012, EU trade ministers endorsed a political agreement for the establishment of a unitary patent system. Then, on Tuesday 11 December 2012, the European Parliament sitting in Strasbourg adopted the two regulations establishing a unitary patent system and voted to support the UPC agreement. Also on Tuesday, the Advocate General delivered an opinion recommending that the Court of Justice dismisses the actions brought by Spain and Italy against the EU Council. The Court of Justice is expected to hand down its judgment early next year. Although the opinion of the Advocate General is not binding on the Court of Justice, the Court of Justice tends to follow recommendations given by an Advocate General. Therefore, the moves taken by Spain and Italy are likely to be dismissed and, if so, will not stop the unitary patent coming into force.

The regulations still need to be formally adopted and published. However, these steps are merely formalities. Assuming that the UPC agreement is signed at an intergovernmental conference in February 2013 and is ratified next year by at least 13 participating states, unitary patents could be granted and the UPC could start hearing cases as early as 2014.