Will it be a case of going back to the future for Ireland?

On 11 December the European Parliament finally approved the Unitary Patent Regulation, a  language proposal and a plan for a Unified European Patent Court. Following ratification by each Member State it is likely that the new system will be operational from 1 January 2014 and that the first unitary patents will issue later that year.

This means that it will be possible to obtain automatic patent protection in 25 Member States,  but not in Italy or Spain who have a challenge pending before the European Court of Justice concerning the “enhanced co-operation” process used to rush the proposals through and who still remain opposed to the plan. Unitary patents will be made available in English, French and German.

The new system is trumpeted by the media release from the European parliament as costing a fraction of the current cost for equivalent protection ( €4725 versus a current average of €36,000) but it remains to be seen in practice whether the savings in the application process will be this significant. In any event the existing system of European Convention patents and national patents will sit beside the new system and applicants will be able to choose to seek protection under all or any of these systems.

The real fun however will be in the litigation system. Both Unitary Patents and European Patents will be litigated in the Unified Patent Court once the Regulation has been ratified by all Member States. The Central Court will be based in Paris with a specialised pharma/bio division in London and a mechanical/automotive division in Munich. There will also be regional and national chapters of the Unified Patent Court with a mix of judges of appropriate technical speciality and nationality sitting in each court.

You may well be asking yourself by this stage how the court system will work in practice and that is great question. Essentially infringement may be dealt with at central, regional or local chapter level depending upon the location of the alleged infringer or patent owner. If brought separately then revocation actions will be litigated in the central courts with location dependant on the technical nature of the patent. However if a defendant in an infringement action counterclaims for revocation then the action can be heard altogether in the court of the originating proceedings.

Then there is the question of the law of infringement which under the new “draft” version of the Regulations will be where the patentee has its principal place of business or residence if in the EU, or in all other cases will be German law. This has been proposed as a means of avoiding oversight of substantive patent law by the European Court of Justice, however we will see how this works out in practice. Although the devil is certainly in the detail, which has not been finalised yet, it is hard to believe that the overriding idea was to make patent litigation in Europe simpler.

For would be Irish patent litigants things are very likely to become even trickier. Although no decision has been made as yet, it looks as though the Irish Government in cost cutting mode may well opt to be a member of a regional grouping instead of hosting a local chapter of the Unified Patent Court. Rumour has it that the grouping will be Ireland, Portugal and the UK and that the seat of the court will be in London.

The question for Irish SME’s is whether litigating in London, even in the new court, could really be cheaper than the local alternative? This is the case more particularly when the new courts are likely to end up as the forum of choice for existing European Patents as well as for Unitary Patents. It is not too far-fetched  to foresee a time when most patent law decisions affecting Irish based litigants will be made by the Unified Patent Court in London.  A factor that will certainly concentrate political minds in Dublin before the constitutional referendum required to ratify Irish participation.