The EU has been discussing this reform package for 40 years, but has never previously managed to find enough support for it. Political momentum at EU level grew behind the reform in 2010, when it was incorporated by the European Commission into its ‘Innovation Union’ flagship initiative, part of the Commission’s ‘Europe 2020’ policy response to the economic downturn. This political momentum has managed to produce a result. A unitary patent covering the whole territory of the European Union (apart from Spain and, possibly, Italy) will be available from the European Patent Office from April 2014. The unified patent court will open its doors from that date too, and will be able in a single set of proceedings to grant a pan-EU injunction and damages for infringing acts carried out anywhere in the EU.
In some cases, this will lead to significant efficiencies and reduction in costs in obtaining and enforcing intellectual property rights. However, it is far from clear that these savings will apply in the majority of patent disputes. The reform is in reality a huge gamble with Europe’s economic future. Industry supports the objectives behind the unitary patent and the unified patent court, but is deeply sceptical that the package which has been approved will actually achieve those objectives. Instead, it could have the opposite effect, undermining innovation, investment and jobs. Only time will tell.
Co-incidentally, the Court of Justice of the EU has also just given an indication that it will reject the pending challenges by Spain and Italy to the legality of the whole patent reform package.
This reform amounts to the biggest upheaval in the landscape of patent protection and enforcement in the EU for at least a generation. Anyone who invests in innovation, or relies on it in their business, is likely to need to get to grips with the new opportunities and risks posed by this reform, and to take steps over the next 12 months to prepare for its introduction.