EU unitary patent likely to launch in spring 2014



James Nurton, London


Members of the European Parliament have overwhelmingly backed plans for a unitary patent and unified patent court covering 25 of the EU’s 27 member states, paving the way for the biggest change in European patent protection in 40 years

In a series of votes today, the MEPs supported the latest proposals put forward by the Cyprus Presidency and rejected amendments that would undermine them. The key vote was passed by 484 votes to 186.

The vote came a day after the plans were also approved by the EU Competitiveness Council.

In a separate development, Advocate General Bot at the Court of Justice of the EU proposed that Italian and Spanish challenges to the enhanced cooperation procedure implementing the unitary patent be rejected.

The CJEU decision in that case is expected early next year. There is speculation that if it follows the Advocate General’s opinion, Italy will fall into line meaning the unitary patent will cover 26 EU states.

Unitary patents will be examined and administered by the EPO, in the same way as existing European patents. At the point of grant, applicants will be able to designate them as unitary patents instead of designating individual states. This is designed to lead to simplification as well as significant savings in the costs of validation, translation and renewal.

Speaking after today’s vote, Commissioner Michel Barnier welcomed the backing of what he called a “dynamic compromise” saying it would make patenting in the EU “more simple and less expensive”. He also stressed that it was still open to Italy and Spain to join the system.

Earlier, MEP Klaus-Heiner Lehne described the plans as “a huge step forward for SMEs” and said the unitary patent project was one of the most important projects in this parliamentary term.

MEP Bernhard Rapkay added: “Whoever votes against this package today is playing with fire. They are playing the big business card against SMEs.”

But during a two-hour debate this morning, many MEPs spoke against the plans, and urged more discussion on the unitary patent. Some favoured less involvement of the EU institutions in the proposed system, and some favoured more.

The patent package consists of three elements: two regulations creating the unitary patent and the language regime, and a treaty setting up the unified patent court.

The treaty is expected to be signed by heads of government at a meeting next February. It must then be ratified by 13 member states, including France, Germany and the UK, before it comes into effect.

Barnier said he is optimistic that the first unitary patents will be granted in spring 2014. However, there are extensive transition periods before the court system fully comes into effect.

Keep up to date with all the unitary patent developments by bookmarking Managing IP's dedicated unitary patent page.




Article Comments

It Ain't Over 'Til It's Over. The legislative battle has just ended, but the war is not over yet... There is no doubt that the unitary-patent is just a stillborn child. Either it will be nullified, or businesses won't use it given its legal uncertainties and rising costs it implies, specially for SMEs.

Gibus Dec 12, 2012

This is certainly a breakthrough. The EU has been discussing this reform for 40 years and has never previously managed to find enough support for it. Political momentum at EU level grew behind the reform in 2010, when it was incorporated by the European Commission into its ‘Innovation Union’ flagship initiative, part of the Commission’s ‘Europe 2020’ policy response to the economic downturn. This political momentum has managed to produce a result.

However, the reform is in reality a huge gamble with Europe’s economic future. Industry supports the objectives behind the Unitary Patent and the Unified Patent Court, but is deeply sceptical that the package which has been approved today will actually achieve those objectives. Instead, it could have the opposite effect, undermining innovation, investment and jobs. Only time will tell.

Furthermore, whilst there are many genuine reasons for concern about the reforms, the concerns of the free software lobby are not widely shared and do not stand up to scrutiny. Under the new system, the validity of patents granted by the European Patent Office (EPO) in any technical field can be challenged before the Unitary Patent Court. The Unitary Patent Court is independent of the EPO, and is not bound to follow the EPO’s interpretation of the European Patent Convention. Whilst it is likely to accord respect to decisions of the EPO’s Enlarged Board of Appeal, it will be free to depart from them, as do national courts under the existing system. In this respect, the reforms do not change the status quo.

Adrian Toutoungi, patent law expert at global law firm Eversheds Dec 11, 2012

Ths is great news for patent owners who will be able to use their questionably valid patents to hammer all competitors within the EU. This is great news for patent attorneys who will see substantial increases in their fees. This is bad news for anyone who likes the idea of a fair and balanced IP system. Long live monopolies, death to competition.

A Patent-Attorney Dec 11, 2012

With today’s overwhelming vote of support in the European Parliament it appears to be full steam ahead for the introduction of the unified patent system in Europe and after several years waiting, we are now expecting things to move quite quickly.
There is currently a significant disparity between the number of patents filed in countries like Japan and the US, compared to the number filed in Europe. The introduction of the unified patent system should make European patents more valuable and we are expecting to see filings increase as a result.
Under the new system, a single unitary European patent will give innovators around the world a very valuable form of commercial protection over a marketplace of around 500 million people.
Nick Wallin, partner and patent attorney at Withers & Rogers www.withersrogers.com

Nick Wallin Dec 11, 2012

Based on the issues raised at the IP Summit last week (see our post here http://ipcopy.wordpress.com/2012/12/11/unitary-patent-unified-patent-court/) a number of parties still have misgivings about the package. Hopefully the draft rules of procedure will be published sooner rather than later.

Mark Richardson Dec 11, 2012

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