Despite extensive criticism from a number of EU companies, IP lawyers, judges and even the respected Max Planck Institute, the European Parliament has approved the Unitary Patent (UP) Regulation and associated legislation. Whilst this still needs to be formally ratified by 13 Member States of the EU (including UK, France and Germany), the new Regulation is hoped to come into force early in 2014. It will bring fundamental changes to both patent prosecution and litigation practice across the EU.
Somewhat surprisingly, the various pieces of interlinking legislation are not yet in a fully agreed form and the rules of procedure of the new Court system are still in draft. It is hoped that they will be finalised in the early part of 2013. Nevertheless the key features of the new system are quite well-set:
- The UP will cover 25 EU Member States (excluding Spain and Italy who have refused to join so far).
- From (hopefully) 2014, an applicant for a European Patent will have the option of going for a UP, a 'conventional' European Patent as well as an EP in non-EU Member States (such as Switzerland and Turkey).
- Costs are not yet known but the system will need to be self-funding (which is likely to mean high official fees for litigation, at least, because of the costs of setting up the new Courts and training the judges).
- The centralised patent litigation system will be available for existing European Patents as well as a UP, which means that they can be centrally attacked as well as enforced from 2014 (although there is a 7 year opt-out for existing patents).
- National patents will still be available as well as national patent litigation for them (and for opted-out EPs).
- There will be a mixture of courts across the EU with a Central Division based in Paris, London and Munich (the latter two specialise in ChemBio and mechanical engineering respectively). This Division is likely to hear invalidity actions and infringement cases against non-EU defendants.
- Local and regional courts will also exist (but with a common procedure), hearing infringement and some invalidity actions against local defendants or on behalf of local patentees.
As said earlier, there has been a chorus of criticism and it will be interesting to see if this impacts on whether this is ratified and when by some of the more sceptical countries (including the UK). It may also impact on the drafting of the legislation which is still in draft form. Whilst change (especially something so fundamental) is not always welcomed, there does seem to be a strong political will within the EU Commission and many Member States to progress this as soon as possible. Even if it does start in 2014, it is likely that many patentees of existing patents will opt-out until the system has bedded down - one of the fears expressed by EU companies is that (although the Court procedures should be the same) existing national practices will remain, with the German Courts bifurcating infringement and validity and granting pan-EU injunctions more liberally that elsewhere based on infringement alone. Whether this will happen in reality only time will tell but it will certainly be several (if not many) years before the system is fully harmonised.
Once all the appropriate legislation is in place, we will be advising our clients on how (or whether) to use the new system, depending on their individual circumstances.