EU - Parliament votes through Unitary Patent

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By a large majority, the EU Parliament today (11 December 2012) voted to approve legislation that enables implementation of the Unitary Patent and the Unified Patent Court.

Only in the EU could the legislation that finally brought to a conclusion some 40 years of debate, negotiation and compromise on the Unitary Patent be immediately followed in the same document by the “Implementation of the bilateral safeguard clause and the stabilisation mechanism for bananas of the EU-Central America association agreement”.

While not an absolute certainty (the legal challenges by Spain and Italy are still be to decided and additionally member states must ratify the legislation), EU politicians have now had their say and have cast their final votes.  In all likelihood we will be seeing Unitary Patents relatively soon.

Many have commented that the legislation has been rushed and is flawed.  There are certainly many areas that will require clarification in years to come.  The provisions on jurisdiction clearly open up a new era on forum shopping and could result in validity being heard in a court in a different country to that of infringement.  However, there are many positives, particularly to the SME and its budget:

  • Translations will (eventually) be no-more
  • Annual maintenance fees will be less than those that would currently be paid if all EP member states were validated
  • Infringement decisions will be enforceable in all member states without further activity
  • SMEs to benefit from reduced annual maintenance fees

The Unitary Patent System will be administered by the European Patent Office.  Examination will be subject to the same EPC provisions as currently apply.  However, at grant a European Patent can be registered as a “Patent with Unitary Effect” instead of being validated in national member states (the legislation explicitly state that a Unitary and a national patent should not be allowed).  It appears that existing European Patent applications that grant after the implementation date of the Unitary Patent may be registered on grant as Patents with Unitary effect. Therefore we could be seeing Patents with Unitary Effect being granted (and therefore available for use in commencing an infringement action) as soon as early 2014.

There are of course many questions:

  • Will Spain and Italy give up their objections and challenges and join the Unitary Patent System now the Advocate General has issued his opinion suggesting their legal challenges be rejected (and the likelihood of the Court of Justice of the EU agreeing))
  • Will the UKIPO and UK courts finally have to shift towards EPO practice on matters such as patentability of software related inventions?
  • Will the UK courts have to abandon their system of following precedent decisions or will the codified legal systems of France and Germany have to be compromised?
  • Will the EPO now have to take notice of decisions from a body (the Unified Patent Court) outside of the EPO (something it has traditionally been reluctant to do)?

As infringement actions must be brought before local courts or courts in the country in which the patentee has its place of business, will business in countries with lesser developed local court systems be disadvantaged?

One politician commented that the time has come for the politicians to hand over to those responsible for implementing the new systems.  More details will follow here as the implementation detail is released and flaws and issues become clear.

Jonathan is a British and European Patent Attorney. He studied Cybernetics with Computer Science at Reading University. He is also a Chartered IT Professional and is a member of the BCS, the Chartered Institute for IT. He is active in promoting IP awareness in IT companies and spends much of his time dealing with both IP for IT and technical IT issues.