The EU patent space and Unified Court are born

Richard Bruton, Irish Minister for Jobs, Enterprise and Innovation and President of the Council, sitting in the middle, with EU Ministers and Commissioner Michel Barnier (standing second from right, front row) participating in the signature ceremony . (EC Audiovisual Services).

Yesterday, during the Council of the European Union meeting, twenty-two member states opened a new page in the history book of the EU, by signing the international agreement for establishing a Unified Patent Court (UPC). Once the agreement enters into force, the signatory countries will form a unified area in terms of patent law. Since the 1970s, the EU member states have been in agreement on the necessity of setting up a common system of patents. Today this became possible.

The UPC is the third element accomplishing the so-called patent package. Two regulations establishing enhanced cooperation for unitary patent protection and its translation arrangements were adopted in December 2012.

A court of six cities

The Central Division of the Court of First Instance will be in Paris. Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F). The Court of Appeal with the Registry will be in Luxembourg and the Patent Mediation and Arbitration Centre will have two seats: in Lisbon (Portugal) and Ljubljana (Slovenia).

The 22 countries that agreed to crate this new European patent space  are Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Estonia, Ireland, Greece, France, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, plus 3 “participating Member States”, Finland, Sweden and the United Kingdom. Bulgaria will sign in a few days.

In four member states, the internal procedures necessary to authorise the signature are still pending, and one member state decided not to sign. All these member states can still accede to the agreement at a later date. The agreement will enter into force as soon as it has been ratified by 13 member states.

A decades old issue

So far, the litigations on the same patent case had often to be judged in multiple courts in different member states. The findings of the new court, however, will be applicable and thus achieve legal uniformity and security across the territories of all the signatory countries. By the same token, the UPC will prevent contradictory rulings and reduce the cost of patent litigation.

This complex issue has been discussed for decades, and it took a decision to allow an enhanced cooperation to solve it. This decision made it possible for this group of member states to adopt common rules when no EU-wide agreement could be reached. An enhanced cooperation procedure can be launched at the request of at least nine member states. The enhanced cooperation permits to the signatory member states to introduce a new EU law in their territories only.

The European patent

Now as for the initial deposition of a patent there is an existing European patent but it is not a unitary title. It is a bundle of national patents with no single jurisdiction for disputes. Any proceedings in relation to “bundled” European patents may be subject to diverse national laws and procedures. Consequently, claimants and defendants bear the risk of multiple litigation actions in a number of countries on the same patent issue. This can be a costly and lengthy process.

Unitary Patent and Unified Patent Court

From now on the unitary patent is a single patent which does not require validation or translation in other participating member states. Neither does it need to be administered in each and every state – there is a single jurisdiction.

The Unitary Patent system will make obtaining a European Patent less complex and cheaper while ensuring legal certainty throughout the entire single jurisdiction. A single patent does not require validation or translation in other participating member states. Neither does it need to be administered in each and every state. This is why the patent system was singled out as one of the top priorities in the EU’s “Single Market Act” in April 2011.

This more affordable Europe-wide patent protection will encourage EU businesses to increase their innovation activity and is particularly good news for SMEs who have limited resources. It will also make Europe a more attractive place for investors.