EU on Fast Track Toward a Single Patent

On April 13—€”just one month after approval was given by the EU Council to proceed under enhanced cooperation—€”the European Commission (EC) has presented proposals for two regulations laying down the conditions for the procurement of a so-called unitary patent.In contrast to the actual situation with a European patent, which requires expensive country-by-country validations, the unitary patent will allow companies and individuals to protect their inventions through a single patent within 25 member states. It will drastically lower the costs of patent protection in Europe, mainly due to a more beneficial translation system. The EC expects a reduction of up to 80 percent of the costs necessary for similar protection through the existing European patent. The unitary patent will be embedded in the framework of the European Patent Convention (EPC) and shall be obtained through the European Patent Office (EPO). To render this legally possible, the EC refers to Part IX of the EPC, which allows a group of EPC contracting states to entrust the EPO with "additional tasks" in connection with patents, with effect throughout their territories. Accordingly, the participating states will have to entrust the EPO with the administration of the unitary patent, which shall include, according to the EC proposals, its registration, limitation and revocation and the collection of renewal fees. The European Union, however, will not need to join the EPO.

The proposals do not deal with another important aspect of Europe's patent reform, namely the unified litigation system through the European Patent Court. Even though this is legally disconnected from the unitary patent and may proceed at its own speed, the EC acknowledges "that the creation of the unitary patent has to be accompanied by appropriate jurisdictional arrangements responding to the needs of the users of the patent system." Commissioner Michel Barnier stated at the April 13th press conference that a further proposed regulation on judicial arrangements, based on the March 8th Court of Justice decision, would be announced in early May. But what happens if the unitary patent should enter into force before any such arrangements are reached between the parties? The judicial enforcement would consequently have to be implemented through the national courts within a still unknown and vague enforcement framework. It might be important for the success of the unitary patent to establish special rules, as it is questionable whether a user would opt for this kind of patent as long as there is no special court system in place.

Even though the first two proposals have now been transmitted to the Council and the European Parliament for adoption, there remain a few open issues that will require some time, negotiations and discussions to resolve.

We will continue to report on the latest developments surrounding a single patent system in the EU, which you can find here.

For more information, contact:

John B. Pegram ([email protected]; tel: 212-765-5070 ) in our New York office.