EU Patent Package

For the EU to be more competitive in relation to the US and Japan, a single patent title has been discussed for a long time. The 18th draft of the rules of procedure was recently presented and the preparatory committee is expected to agree on a final set of rules at its meeting this month.

We previously reported on the new patent package that is to come into force within the EU. Since our last article in the Life Sciences Report there have been some updates that we would like to report. 

The EU has been discussing a single patent title providing uniform protection throughout the EU for at least 30 years. By signing the Unified Patent Court (“UPC”) Agreement we may now have reached the goal. The UPC Agreement was approved December 2012 within the EU along with a regulation creating unitary patent protection (Regulation 1257/2012) and a regulation establishing language rules. These three instruments have been referred to as the EU patent package. Sweden ratified the UPC Agreement on June 5, 2014. Very recently Italy announced that it also wants to join the UPC Agreement, which means that 26 member states are now participating in the initiative.

As previously stated, unitary patents will be granted by the European Patent Office (EPO) but will constitute a single patent title providing uniform protection and equal effect. The patentability requirements and term of protection will be the same as for European patents today.

The UPC will also have jurisdiction over enforcement of existing European patents. The court system will include a Court of First Instance and a Court of Appeal. So-called Local and Regional Divisions form a part of the Court of First Instance. In addition there is a Central Division in Paris with departments in London (for i.a pharma-related issues) and Munich (for mechanical engineering). In March 2014 Sweden, Estonia, Latvia and Lithuania signed an agreement on the establishment of a Nordic-Baltic Regional Division of the UPC, which would be located in Stockholm. The language of the proceedings will be English. The Court of Appeal in the UPC system will be based in Luxembourg. 

Decisions under the UPC system will be effective and binding in all participating states. This means that a revocation of a patent or a decision concerning infringement will have effect in all participating member states. 

The UPC will handle cases concerning unitary patents as well as European patents, including previously granted patents following a transition period of seven years from the date of entry into force of the UPC agreement. During the transition period rightholders of traditional European patents may “opt out” of the UPC system. An opt out means that a European patent will remain subject to the national system we know today. However, a rightholder may choose at any time during the transition period to opt in to the UPC system.

Spain has lodged two appeals against the regulation, but on May 5, 2015, the Court of Justice dismissed Spain’s actions, which means that the implementation process has continued. 

Furthermore, on October 1, 2015, a protocol to the UPC Agreement was signed by representatives of member states, allowing some parts of the Agreement to be applied early. For example, the rules regarding recruitment of judges will come into force earlier and early registration of opt out demands will also be permitted.

However, there is still a ways to go before the system becomes operational. Before the unitary patent comes into effect it must be ratified by 13 member states, including France, Germany, and the United Kingdom. France is the only country of these required member states that have
ratified the Agreement to date.

The estimated timeframe is that the preparatory committee will complete its work by June 2016 and the UPC will begin in early 2017. Life Sciences Report will follow the developments.