As of March 2017, neither of the two remaining non-participants in the unitary patent (Spain and Croatia) had requested the European Commission to participate. While the regulations formally apply to all 26 member states participating in the enhanced cooperation for a unitary patent, from the date the UPC agreement has entered into force for the first group of ratifiers,[notes 2] unitary patents will only extend to the territory of those participating member states where the UPC Agreement had entered into force when the unitary effect was registered. August, 2017. France, Germany, Ireland, Luxembourg, United Kingdom, None (transitional period: one translation, so that the unitary patent is available during the transitional period in English and at least another EU official language), Claims in the official language of the concerned State, Denmark, Finland, Hungary, Netherlands, Sweden, Description in English, claims in the official language of the concerned State, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Malta, Poland, Portugal, Romania, Slovakia, Translation of the complete patent in an official language of the concerned State. For the system to come into force, the Agreement on a Unified Patent Court has to be ratified by at least 13 EU member states, including the three most popular member states for validating European patents. [20] and on 10 March 2011 the Council gave their authorisation. [87] European patents automatically become a bundle of "national" European patents upon grant. English-language patents will require translation into any other language of an EU member state. However, the, Although the filing of a translation under, There is no consistent usage of a particular expression to refer to "the European patent in a particular designated Contracting State for which it is granted". [96] and extends the unified patent court agreement there as well. In order to obtain a unitary patent, the patent owner must file, within one month of grant, a “Request for Unitary Effect” and, during a transitional period, the applicable translation. In several contracting states, for "national" European patents a translation has to be filed within a three-month time limit after the publication of grant in the European Patent Bulletin under Article 65 EPC,[notes 8] otherwise the patent is considered never to have existed (void ab initio) in that state. a "national" European patent,[notes 7] is effectively independent of the same European patent in each other Contracting State, except for the opposition, limitation and revocation procedures. The Unified Court will apply the Unified Patent Court Agreement, which is considered national patent law from an EU law point of view, but still is equal for each participant. Unitary effect can be registered for a European patent upon grant, replacing validation of the European patent in the … This court will be attached to the present European Court of Justice and Court of First Instance through use of provisions in the Treaty of Nice. In particular, he cited the failure to agree on a Europewide patent, or even the languages to be used for such a patent, "because member states did not accept a change in the rules; they were not coherent". Based on more realistic assumptions, the cost savings are expected to be much lower than actually claimed by the Commission.[100]. For the state of play regarding ratification, please see the website of the Council of the EU. [26] However, serious criticisms of the proposal remained mostly unresolved. What is the Unitary Patent? It provides that the patent, once it has been granted by the European Patent Office (EPO) in one of its procedural languages (English, German or French) and published in that language, with a translation of the claims into the two other procedural languages, will be valid without any further translation. Unitary Patent & Unified Patent Court / Webinar. For smaller businesses, if the Community patent achieves its aim of providing a relatively inexpensive way of obtaining patent protection across a wide trading area, then there is also support. It is clear to me from discussions with member states that there is no consensus at present on how to improve the situation. Unitary effect of newly granted European patents can be requested from the date when the related Unified Patent Court Agreement enters into force for the first group of ratifiers,[notes 2] and will extend to those participating member states for which the UPC Agreement had entered into force at the time of registration of the unitary patent. [34] At an EU summit at the end of January 2012, participants agreed to press on and finalise the system by June. This may be important to avoid conflicts with national (non-European patent) applications. Only one renewal fee needs to be paid, to the EPO. The Unified Patent Court will have exclusive jurisdiction in infringement and revocation proceedings involving European patents with unitary effect, and during a transition period non-exclusive jurisdiction (that the patent holder can be opt out from) regarding European patents without unitary effect in the states where the Agreement applies. The unitary effect means a single renewal fee, a single ownership, a single object of property, a single court (the Unified Patent Court) and uniform protection—which means that revocation as well as infringement proceedings are to be decided for the unitary patent as a whole rather than for each country individually. Available at SSRN: Bruno van Pottelsberghe de la Potterie, Malwina Mejer, Unitary patent (Switzerland and Liechtenstein), Treaty on the Functioning of the European Union, enhanced cooperation for a unitary patent, Administrative Council of the European Patent Organisation, presidency of the Council of the European Union, Paris Convention for the Protection of Industrial Property, ratified by France and 11 additional states, unitary patent for Switzerland and Liechtenstein, "Spain & Italy v Council: Case C-274/11 (Joined Cases C-274/11, C-295/11)", "JUDGMENT OF THE COURT (Grand Chamber) in Case C‑146/13", "JUDGMENT OF THE COURT (Grand Chamber) in Case C‑147/13", "COMMISSION DECISION (EU) 2015/1753 of 30 September 2015 on confirming the participation of Italy in enhanced cooperation in the area of the creation of unitary patent protection", "The Unified Patent Court: all dressed up but no place to go? On 17 December 2012, agreement was reached between the European Council and European Parliament on the two EU regulations[1][2] that made the unitary patent possible through enhanced cooperation at EU level. France and Italy, are included - see information on the withdrawal of the United In May 2015, the communicated target date for completion of the remaining preparatory work of the Select Committee was 30 June 2015. [123][124], According to the agreed plan, the EU would accede to the European Patent Convention as a contracting state, and patents granted by the European Patent Office will, when validated for the EU, have unitary effect in the territory of the European Union. [113], The European Commission released a white paper in April 2007 seeking to "improve the patent system in Europe and revitalise the debate on this issue. [110], European Commission President Romano Prodi, asked to evaluate his five-year term, cites as his weak point the failure of many EU governments to implement the "Lisbon Agenda", agreed in 2001. Ullrich, Hanns, The Property Aspects of the European Patent with Unitary Effect: A National Perspective for a European Prospect? In particular the time delays for translating the claims and the authentic text of the claims in case of an infringement remained problematic issues throughout discussions and in the end proved insoluble. If not, I will take it up at the June European Council. The court of appeal and the registry would have their seats in Luxembourg, while the central division of the court of first instance would have its seat in Paris. Twelve states signed the Agreement: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, and United Kingdom. [54][notes 6] Patentable inventions, according to the EPC, are "any inventions, in all fields of technology, providing that they are new, involve an inventive step, and are susceptible of industrial application."[55]. The expectation was that the unitary patent would become operational early 2017. [notes 4] "Classical", non-unitary European patents hold exclusively for single countries and require the filing of a translation in some contracting states, in accordance with Article 65 EPC. [12] For 2020 the challenge was again on the list of cases. This Agreement consisted of an amended version of the original Community Patent Convention. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.[67]. In addition to regulations regarding the court structure, it also contains substantive provisions relating to the right to prevent use of an invention and allowed use by non-patent proprietors (e.g. It is not yet clear when the Unitary Patent will come into force. As of April 2014, this includes the following fourteen territories: In addition to the territories above, the European Patent Convention has been extended by three member states participating in the enhanced cooperation for a unitary patent to cover some of their dependent territories outside the European Union:[95], Among the dependencies in the second list, the Isle of Man[94] as well as Caribbean Netherlands, Curaçao and Sint Maarten intend to apply the unitary patent. Wow, One more article on the Unitary Patent! [6], European patents are granted in accordance with the provisions of the European Patent Convention,[52] via a unified procedure before the European Patent Office. The legality of the two regulations was challenged by Spain and Italy, but all their claims were rejected by the European Court of Justice. They will offer users of the patent system a cost-effective option for patent protection and dispute settlement across Europe. In this post, we have gathered the most frequent questions about the Unified Patent Court and the Unitary Patent system expected to come into force in 2018 or 2019. In an impact assessment the European Commission estimated that the costs of obtaining a patent in all 27 EU countries would drop from over 32 000 euro (mainly due to translation costs) to 6 500 euro (for the combination of an EU, Spanish and Italian patent) due to introduction of the EU patent. [23], In November 2011, negotiations on the enhanced co-operation system were reportedly advancing rapidly—too fast, in some views. The work of the Select Committee has to proceed in parallel to the work of the Preparatory Committee for the creation of the Unified Patent Court. [27] A meeting of the Competitiveness Council on 5 December failed to agree on the final text. The setting up of a specialised Unified Patent Court is the lynch pin in a package which will create the first patents with unitary effect in Europe. It is not yet possible to estimate the timetable for the entry into force of the unitary patent system. for private non-commercial use), preliminary and permanent injunctions. [8] According to the European Commission, the consultation showed that there is widespread support for the Community patent but not at any cost, and "in particular not on the basis of the Common Political Approach reached by EU Ministers in 2003".[8]. The new regime for the UP will not take effect until the UPC Agreement has been ratified by 13 member states, including the UK, France and Germany. Following the positive decision of the Court of Justice on 5 May 2015, the final legal obstacle has been overcome. The coverage of a given generation of Unitary Patents will stay the same for their entire lifetime, irrespective of any subsequent ratifications of the UPC Agreement after the date of registration of unitary effect. [125] On 10 November 2010, it was announced that no agreement had been reached and that, "in spite of the progress made, [the Competitiveness Council of the European Union had] fallen short of unanimity by a small margin,"[126] with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination,[127] had "re-iterated at length the stubborn rejection of the Madrid Government of taking the 'Munich' three languages regime (English, German, French) of the European Patent Convention (EPC) as a basis for a future EU Patent. The breakthrough was reported to involve setting up a single patent court for the EU,[122] however ministers conceded much work remained to be done before the community patent would become a reality. by dispensing with the requirement if the patent is available in English, and/or only requiring translation of the claims). the first day of the fourth month following the deposit of the 13th instrument European patents will continue to be granted in English, French or German. The central division would have thematic branches in London and Munich. •A single patent will cover 25 participating Member States for approximately the same cost as it currently costs to obtain and maintain protection in 4 countries. Unitary Patent . The Agreement was signed on 19 February 2013 by 24 EU member states, including all states then participating in the enhanced co-operation measures except Bulgaria and Poland, while Italy, which did not originally join the enhanced co-operation measures but subsequently signed up, did sign the UPC agreement. A number of translation requirements will still be in force post-grant in the ‘transition period’ … I can only hope that one day the vested, protectionist interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. [28] In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located,[29] "with London, Munich and Paris the candidate cities. The process for the ratification of the agreement is still ongoing, and the Unitary Patent package will come into force by the end of 2016. Germany, However, in November 2016 the UK government announced its intention of ratifying said Agreement, notwithstanding its desire to start Brexit talks. The court hearing for both cases was scheduled for 1 July 2014. [1][2], On 30 May 2011, Italy and Spain challenged the Council's authorisation of the use of enhanced co-operation to introduce the trilingual (English, French, German) system for the unitary patent, which they viewed as discriminatory to their languages, with the CJEU on the grounds that it did not comply with the EU treaties. Tweet. The European Unitary Patent Package is predicted to come into force as soon as Autumn 2016. [24] It was announced that implementation required an enabling European Regulation, and a Court agreement between the states that elect to take part. Get the latest issues delivered direct to your inbox, First steps towards turning the vision into reality, See our learning resources about patent searching, information on the withdrawal of the United [115][116], In October 2007, the Portuguese presidency of the Council of the European Union proposed an EU patent jurisdiction, "borrowing heavily from the rejected draft European Patent Litigation Agreement (EPLA)". [19] The use of this procedure had only been used once in the past, for harmonising rules regarding the applicable law in divorce across several EU Member States. It is European Union regulation No. [41] A later press release by Rapkay quoted from a legal opinion submitted by the Legal Service of the European Parliament, which affirmed the concerns of MEPs to approve the decision of a recent EU summit to delete said articles as it "nullifies central aspects of a substantive patent protection". Email This BlogThis! [44][63][64][65][66] The instruments were adopted as regulations EU 1257/2012 and 1260/2012 on 17 December 2012, and entered into force in January 2013. [10] Then, Brexit and German constitutional court complaint by Dr Stjerna were considered as the main objects. [68] These tasks include the collection of renewal fees and registration of unitary effect upon grant, exclusive licenses and statements that licenses are available to any person. [56] In other words, a European patent in one Contracting State, i.e. [13] With a decision of 13 February 2020, the German Federal Constitutional Court found the complaint justified and, thus, suspended the ratification process.[14]. •A single judgment will cover all participating Member States. For the 21 parties to the London Agreement, this requirement has already been abolished or reduced (e.g. It will be possible for the holders of European patents to opt-out for a transitional period (of up to seven years), thus allowing them to continue to benefit from the current system. Upon filing of a European patent application, all 38 Contracting States are automatically designated,[59] unless, when filing the application, the applicant withdraws one or more designations. [38][39] However, on 2 July 2012, the European Parliament decided to postpone the vote following a move by the European Council to modify the arrangements previously approved by MEPs in negotiations with the European Council. The Community Patent proposal was generally supported if it would do away with both of these issues, but there was some concern about the level of competence of the proposed European Patent Court. Developments towards the Unitary patent system, in which a European patent application can have 'unitary effect' within many of the EU states, had just begun to speed up, with the first Unitary patent expected to be granted mid 2017. [62] Previously, only Liechtenstein and Switzerland had used this possibility to create a unified protection area (see Unitary patent (Switzerland and Liechtenstein)). "[72], In January 2013, after the two regulations about the unitary patent had entered into force, but before the regulations applied, the participating member states in the unitary patent established (as member states of the European Patent Convention) a Select Committee of the Administrative Council of the European Patent Organisation in order to prepare the work for implementation of the provisions. The target date for the unitary patent system was May 2017 but the result of the EU Referendum in the UK has thrown the timescale into doubt. [119][120] Meanwhile, European Commissioner for Enterprise and Industry Günter Verheugen declared at the European Patent Forum in May 2008 that there was an "urgent need" for a community patent. [103] It attempted to revive the CPC project, but also failed. [115] He further said that he believed this could be done within five years. Similarly, Switzerland and Liechtenstein created a separate unitary patent under the European Patent Convention. A single patent application, in one language,[53] may be filed at the European Patent Office or at a national patent office of certain Contracting States. This proposal is aimed to achieve a considerable reduction in translation costs. From the point of view of the European Commission the Community Patent is an essential step towards creating a level playing field for trade within the European Union. With the recent decision surrounding the Brexit, it looks unlikely that applicants will be able to secure patent protection universally throughout Europe. [15][31][32] According to the President of the European Commission in January 2012, the only question remaining to be settled was the location of the Central Division of the Court. But, most likely, the unitary patent won?t come into effect until this matter has been clarified. The enforcement of a European patent is dealt with by national law. A translation needs to be provided either into English if the application is in French or German, or into any EU official language if the application is in English. [notes 5], On 18 January 2019, Kluwer Patent Blog wrote, "a recurring theme for some years has been that 'the UPC will start next year'". (15 April 2013). "[72] When the applicant had no domicile in a participating Member State, German law will apply. When is it going to come into effect? 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