Unitary patent protection

A single patent title, to make the EU more competitive as regards the US and Japan, has long been under discussion. The 17th draft of the rules of procedure has recently been published and this version is deemed to have the support of all the participating states as the preparatory committee has made the changes to this draft that they considered necessary.

The EU has been discussing a single patent title providing uniform protection throughout the EU for at least 30 years. It seems as though we have now reached a conclusion in the signing of the Unified Patent Court (“UPC”) Agreement. The UPC Agreement was approved within the EU in
December 2012 together 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 the 5th of June 2014.

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 terms of protection will be the same as for the European patents of today. To obtain a unitary patent, entry in the Register for Unitary Patent Protection must be requested from the EPO within one month of the patent being granted.

The creation of the UPC is the basis for enforcement of unitary patents. However, the UPC will also have jurisdiction over the enforcement of existing European patents. The court system will include a Court of First Instance and a Court of Appeal. What are known as 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, inter alia, pharma-related issues) and Munich (for mechanical engineering). At the time of ratification each contracting state must clarify whether they
are setting up a Local or Regional Division. 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 for 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 both unitary patents and 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, holders 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 patent-holder may at any time during the aforementioned transition period choose to opt into the UPC system. 

Spain has lodged two appeals against the regulation, however, on the 5th of May 2015, the Court of Justice dismissed Spain’s actions which means that the implementation process is further on its way. 

However, there is still a way to go before the system becomes operational. Before the unitary patent comes into effect 13 states, including France, Germany, and the United Kingdom, are required to ratify. France is the only country of the required states that have ratified so far. Furthermore, on May 8th 2015 the preparatory committee launched a written consultation process on the fee structure of the court. The users now have 12 weeks to give their feedback on the consultation. IP/Tech Report will cover the development.