In February 2013, 25 European Countries signed the Unified Patent Court Agreement which could result in the new European Unitary Patent system starting as early as 2014. Is your business prepared for the new system?
Some large companies and patent trolls are expected to benefit from the new system, but SMEs may be better off obtaining national patents in a few European countries of particular interest.
What is a European Unitary Patent?
- A European Patent with Unitary Effect is a single European patent granted by the European Patent Office that will cover nearly all countries of the European Union.
- Spain and Italy have opted out of the system. A constitutional challenge to the Unitary Patent Regulation and the Unified Patent Court Agreement by those countries has now been dismissed by the Court of Justice for the EU.
- Many of the other 25 member states of the European Union are expected to ratify the Agreement before the end of 2013 to enable the system to take effect sometime in 2014.
How do I obtain a European Unitary Patent?
Within a month from grant of a European patent you must request that the European patent is granted with unitary effect, and file a full translation of the patent into another language of an EU state.
Does the European Unitary Patent replace the current European patent system?
- The European Unitary Patent system will operate alongside the current system. If you do not want your European patent to have unitary effect, you must validate the patent in required countries within three months from grant by current validation procedures.
- Validation of a European patent will still be required in non-EU countries, eg Switzerland, and in Italy and Spain.
- Dual protection will not be possible via a European Unitary Patent and a national patent in a country that is part of the Unitary Patent system.
- National patents in the EU states will still be available as an alternative.
How will European Unitary Patents be enforced?
- Both European Unitary Patents and European Patents will be litigated exclusively in the new Unified Patents Court.
- The central division of the court will be located in Paris, with sections in London (for Phamaceutical and Biotech cases) and in Munich (for mechanical and electrical cases).
- There will also be local and regional divisions in some countries.
- Owners of national patents obtained by validation of a European patent can opt out of the Unified Patents Court for up to 7 years.
Will I save costs by obtaining a European Unitary Patent?
- Some cost savings may be achieved by reduction in validation fees after grant, and in renewal fees.
- If you have previously validated your European patents in 5 or more countries, there should be a cost saving, because the renewal fees are expected to be based on the equivalent of renewal fees in 5 European countries.
- Many applicants for European patents currently validate in 3-5 countries, and in such cases there will be little or no cost saving.
Are there any other disadvantages in the new system?
- A European Unitary Patent can be revoked for all countries by either post-grant opposition at the European Patent Office, or by revocation at the Unified Patents Court.
- Litigation of European Unitary Patents will be very uncertain until the Unified Patents Court has tried several cases and established its own case law.
Who will benefit most from the new system?
- Large companies that currently obtain patents in a large number of European countries should achieve cost savings of up to 80%
- Non-practising entities (NPEs) and patent assertion companies, otherwise known as patent trolls, should benefit by having a bigger stick to wield over possible infringers
- SMEs are unlikely to benefit because of the uncertainty and expected high cost of patent litigation at the Unified Patents Court
- SMEs should probably still consider obtaining national patents in selected European countries where they have a particular interest.