As part of its objective of increasing continental co-operation and efficiency, the European Union has for a considerable time favoured the establishment of a unified patent system. A patent derived from such a system would be cheaper to establish and be applied more consistently than under the current system, in which patents are assessed and enforced on a country-by-country basis.
Following decades of discussion, EU Regulations 1257/2012 (Enhanced Cooperation in the Area of the Creation of Unitary Patent Protection) and 1260/2012 (Applicable Translation Arrangements) were approved in December 2012. The new Unitary Patent will be governed in the UK by the Intellectual Property Act and is likely to come into effect from 2015. It is hoped that it will provide uniform protection with equal effect in all of the participating EU states to which a single set of renewal fees will apply.
The new patents will be enforceable by the EU’s Unitary Patent Office, consisting of local and regional courts, a Central Division and a Court of Appeal. The Central Division will be located in three cities, with each office specialising in the assessment of particular types of patent;
- London – pharmaceutical and life sciences patents;
- Munich – mechanical patents; and
- Paris – all other types of patented inventions.
Each participating country will be permitted to host up to four local courts, depending on the number of patent claims it is required to resolve. If there is no convenient local or regional court available, the claimant will be required to apply to the relevant office of the Central Division.
The original draft of the Intellectual Property Bill did not include a Scottish court as a potential local court of the Unitary Patent Office. Concerns were raised by numerous groups, including the SNP and the Law Society for Scotland, that this could severely handicap Scottish inventors and entrepreneurs, who would be required to make patent applications outside of their home jurisdiction. Further parliamentary debate of the relevant costs and timing implications resulted in an amendment to the draft Bill; the Court of Session was proposed as a local court for the purposes of the Unitary Patent scheme.
There are clear benefits to a unified patents system, particularly in the context of enforceability and administrative costs. However, the introduction of a multijurisdictional system, which will encompass myriad forms of intellectual property law, is unlikely to be achieved without some difficulties.
Any business which holds a European patent, or is considering applying for one prior to the introduction of the new regime, should be aware of the following issues;
- Any existing or impending European patents will be affected by the transitional provisions, which are intended to result in parity with the Unitary Patent scheme. There will be a transitional period during which European patents may be litigated in either the Unified Patent Office or in the national courts of the participating countries, with the latter subsequently becoming unviable an opt-out is triggered.
- The Unified Patent system will not have any effect in non-EU countries or any EU countries which choose not to participate. The system will not replace national patent systems; UK patents granted by the Intellectual Property Office will remain within the jurisdiction of the UK courts.
It is obvious that careful consideration of the appropriate forum will be required prior to an application for a new patent. The existing national systems have the advantages of greater stability and certainty of enforcement. However, the ability to apply for a single patent which is intended to be enforceable throughout the EU will be attractive to businesses which engage in multinational trade. These businesses may therefore perceive the risk of participating in the new and untried system to be one worth taking.