In Europe, patent protection can be obtained either through the national patent offices of the Member States, which grant national patents, or through the European Patent Office (EPO). Once a European patent is granted by the EPO it effectively becomes a bundle of national patents. The national laws of most European Member States require a translation of at least part of the European patent into a local language. This step is known as 'validation'. The validation step can incur very high costs for applicants and is complex. The European Commission has recently proposed to create a European patent that has unitary effect in all those Members States that elect to participate. This proposal will eliminate the costly translation requirement. Whilst this is very good news for applicants (and for Europe), the unitary European patent is still at the proposal stage and is still likely to be some years away from coming into force.
The overall cost of validating an average European patent can reach about 12,500 EUR (£11,000 or $18,000) if validated in 13 Member States and over 32,000 EUR (£28,000 or $45,000) if validated in all Member States. Despite the recognition of the competitive disadvantage that this brings to Europe, the European Union (EU) has not been able to establish unitary patent protection, despite many failed attempts.
On 13 April 2011 the European Commission presented proposals for two regulations related to the 'unitary patent'1. Twenty-five Member States are currently engaged in enhanced co-operation to establish unitary patent protection with the notable exception of Italy and Spain2. The unitary patent is not expected to change the current European patent system up until grant but, shortly after grant, the patent can be registered as a European patent with unitary effect rather than as a bundle of national patents. The new provisions will therefore compliment the existing European patent system and so the applicant can still elect to validate the patent as a bundle of national patents if desired.
Where the specification of a European patent with unitary effect has been published by the EPO, no further translations are required other than a translation of the claims into the other two official languages of the EPO. Further translations are only requested during a transitional period or in case of a dispute.
During the transitional period, a request for unitary effect must be accompanied by the following:
- a full translation of the specification of the patent into English where the language of the proceedings before the EPO is French or German; or
- a full translation of the specification of the patent into any official language of the participating Member States that is an official language of the EU where the language of the proceedings before the EPO is English.
This transitional period will terminate as soon as high quality machine translations into all official languages of the EU are available. It is considered that the machine translations will be developed within approximately 12 years. To this end, the EPO recently signed a long term non-exclusive agreement with Google Translate.
In the case of a dispute concerning a European patent with unitary effect, the patent proprietor will have to provide a full translation of the patent into an official language of the participating Member State in which either the alleged infringement took place or in which the alleged infringer is domiciled. The patent proprietor will also be required to provide, at the request of the competent court dealing with the dispute, a full translation of the patent into the language of proceedings of that court. Such translations will have to be provided at the expense of the patent proprietor.
A single annual renewal fee will be payable under the proposals and the EPO will oversee the administration of the unitary patent.
And A European Patents Court?
Whilst it would be highly desirable for the unitary patent to be supported by a centralised European Patents Court, the establishment of such a court has recently been held to be incompatible with EU law according to the EU Court of Justice3. This is certainly a set back since it is generally recognised that the unitary patent system would be much more effective if enforcement was decided through a central court, rather than through court proceedings in each Member State. The decision from the EU Court of Justice did make reference to the Benelux Court (which is a court common to Belgium, the Netherlands and Luxembourg) which ensures the uniform interpretation of common legal rules amongst these countries and is situated within the judicial system of the European Union. It is possible that the unitary patent could be supported by courts which have jurisdiction within more than one Member State.
The biggest advantage of the unitary patent will be the reduction in costs associated with validating the European patent. Some commentators have predicted that this cost might fall to as low as 700 EUR (£600 or $1000) once the transitional period has passed. This will represent a significant reduction in the cost of securing European patent protection and should place Europe on a much more competitive footing with other countries.
The biggest disadvantage with the unitary patent proposal is that a unitary patent can only be transferred, limited, revoked or allowed to lapse in respect of the Member States as a whole. So if the patent is deemed to be invalid in a single Member State then this will mean that the patent will be lost in every single Member State. This contrasts sharply with the current European patent system in which the loss of the patent in one Member State still leaves the patent intact elsewhere. Whilst this may be of concern to some applicants it should be remembered that the unitary patent will run alongside the existing patent system. Thus, decisions can be made on a case by case basis whether or not to pursue the unitary patent route and benefit from the lower cost versus pursuing the conventional European patent route which will incur higher cost but arguably will provide more robust protection.
The proposals for the unitary patent are to be welcomed by applicants of European patents in light of the significant cost savings that they will bring. The possible lack of complementary enforcement is a problem but is unlikely to hold up the progress of the unitary patent. The proposals will now be considered by the European Council and Parliament for adoption. This, however, might still take some time.