|A happy man:
Together with the regulations setting up a unitary patent
and language regime, the UPC agreement will finally deliver a
means of protecting and enforcing inventions in Europe. Or
so the politicians
Reality of course is more
Compromises over translation requirements and the role of
the CJEU, as well as uncertainty about renewal fees, may mean
that the new system when it comes into effect (2015, most
likely) may not be cheaper overall for some applicants. And
anyone who has read the
UPC agreement and rules of procedure would be hard pressed
to claim that the new court system is simple.
That’s why many European practitioners still
reservations about the plans, and a few people strongly oppose them.
But in recent weeks I’ve detected a little more
optimism and people do now seem to want it to succeed
– bearing in mind success is not just about numbers;
the system must also be predictable and trusted by patent
owners and third parties. That means attention turns to three
The first is
rules of procedure, the latest version of which was
released at the end of January. A great deal of thought has
gone into drafting these (arguably more than went into the
agreement itself). There is still an opportunity for people to
comment, and I understand the drafters will welcome comments on
matters of detail where there is a need for clarification.
Clear, thorough, predictable rules, together with rules on
court costs, will be essential for a strong system.
The second is the judges. Once it comes into force, they can
make or break the UPC. We need experienced judges to take part,
such as from the busy courts in Germany, the Netherlands and
the UK, and it is slightly concerning to hear that some of them
may not put themselves forward: Europe needs you! But the
system also depends on judges from countries with less history
of patent litigation – and that is surely right: the
judiciary must be representative of all the member states
participating if it is to have legitimacy. Those judges need
training and the opportunity to gain experience before the
court opens its doors.
Finally, the politicians need to recognise that their work
does not finish with today’s signing. As
Commissioner Michel Barnier
said yesterday, the agreement must be ratified by each
member state, which may be tricky in some cases. Patchwork
ratification would increase complexity and reduce
attractiveness. Longer term, political leaders may need to
respond to problems and tweak the agreement (there is provision
to do this, though it may not be easy).
Above all, participating member states need to agree on the
fees (especially annuity fees), as this is the biggest source
of uncertainty for patent owners. Multinational companies are
already planning their budgets for 2014 and beyond, and cannot
make strategic decisions about whether to consider unitary
patents until we know what they cost. Talks about money are
never easy, and as
patent attorney Thorsten Bausch has argued there are
particular difficulties with setting fees for this new right,
but we need to see some figures soon.
Today is a landmark, and the part-realisation of a
40-year-old European dream. But there is still a lot of work to
do to ensure that the unitary patent and UPC deliver on their
promise to boost European innovation and industry.