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Unitary Patent Protection in the European Union


After the positive vote of the European Parliament in the last week, the Council of the European Union today formally adopted the "Regulation implementing Enhanced Cooperation in the area of the creation of Unitary Patent Protection".

This represents a breakthrough in the long-running process to establish Unitary Patent Protection in the European Union. Additionally, however, the Agreement on a Unitary Patent Court system needs to be signed and then ratified by at least 13 member states including the United Kingdom, Germany and France. Ratification will probably not be completed before mid 2014. Furthermore, the European Court of Justice has not yet decided on the corresponding legal challenges filed by Italy and Spain. The decision is currently expected to be in favor of the Unitary Patent and against Italy and Spain.

The grant procedure under the new Unitary Patent System will not change significantly. Whether a European Patent Application will become a classic European Patent or a new "European Patent with Unitary Effect" depends on a demand of the Applicant at the end of the grant procedure. For non-participating states (e.g. Switzerland, Norway, Italy and Spain), only a classical European Patent can be obtained, for the participating states both systems are available alternatively.

The main advantage of the Unitary Patent System is that national validations and the corresponding translations are no longer necessary. Furthermore, only a single annual renewal fee will be payable directly to the European Patent Office. This fee is expected to be significantly lower than the sum of individual annual fees payable for a classical European Patent after grant.

These advantages, however, come at a certain price:

The currently most complex and most controversial aspect of the Unitary Patent Protection relates to the Unitary Patent Court system which will consist of a first instance system of local, regional and central divisions. A Court of Appeal, sitting in Luxembourg, will hear appeals. Following an initial seven year transitional period (extendable by a decision of all participating states), the Unitary Patent Court will also have sole jurisdiction over classic European patents.

In principle, the Unitary Patent Court system is intended to increase legal certainty and lower costs for both parties. A single court decision will take effect across all participating states. For patentees, this may represent a double-edged sword: while it will become easier to pursue infringers, patents may also be declared invalid across the entirety of the participating states. Furthermore, the Unitary Patent Court system may probably, at least in the beginning, not offer the level of quality and reliability in jurisdiction as the courts currently competent.

Unfortunately, the legal framework of Unitary Patent Protection is somewhat complicated. We have therefore prepared a download comprehensive paper for your detailed reference.

Author: Dr. Moritz Frommberger
Practice Areas: Patents & Utility Models, IP-Strategy & Due Diligence
Industry: Semiconductor Technology, Life Science & Biotech, Cleantech, Control Engineering, Information and Communication Technology, Mechanical Engineering, Medtech, Optic, Process Engineering