With World IP day fast approaching, we now turn our focus to patents. A patent protects new inventions and covers how things work, how they do it, what they do, how they are made and what they are made of. A patent is a negative right in that if granted, it allows the owner to prevent other people from using, making, selling or importing the invention it covers without permission.
In order to be granted (although this is by no means a guarantee that it will be granted), a patent must:
- be new;
- involve an inventive step that is not obvious to a person experienced in the subject area; and
- be capable of being used or made in industry.
There are various areas in which inventions are not patentable, including the way of playing a game, an animal or plant variety or something which is against public policy or morality.
The current system of European patents is costly and is effectively a bundle of national patents, rather than a true ‘European’ patent. This is because applicants must select specific European territories in which they would like to seek patent protection. However, there has been much recent progress made to reform the European patent system. The new unitary patent aims to:
- stimulate innovation;
- provide legal certainty;
- lower costs; and
- become more accessible to SMEs.
The unitary patent will give uniform protection through the participating European states with exclusive jurisdiction to solve disputes falling to the new Unitary Patent Court. The Unitary Patent Regulation itself entered into force on 20.01.2013 in all EU countries, minus Spain and Italy, who were not happy with the decision not to include Spanish and Italian as official languages. The Unitary Patent Court Agreement was signed on 19 February 2013 and will enter into force when ratified by Germany, France, the UK and 10 other participating states.
This new patent carries with it many benefits, but will also pose some problems. For example, once granted, the patent will retain its unitary character and cannot be separated and dealt with differently based on different states. As a result of this, the patent can only be assigned or revoked for all unitary patent states at once. Licensing will however be allowed for single states within the unitary patent system.
The introduction of the new unitary patent will create even more choice for those wishing to be granted a patent in Europe. National patents, European patents and unitary patents are all possibilities offering different advantages and drawbacks – which will you choose?