Only a few months away from the single European patent space

From left to right: Viviane Reding, Vice President of the European Commission, responsible for Justice, Fundamental Rights and Citizenship and Juozas Bernatonis, Lithuanian Minister of Home Affairs. Lithuania presently holds the EU rotating Presidency in the Council. (Council of the European Union photographic library, 06/12/2013).

In a major breakthrough development for EU’s internal market, the EU Justice Ministers agreed yesterday on a Commission proposal, to complete the legal framework of one pan-European patent universe. The key point in this draft regulation is that the rulings of the Unified Patent Court will be recognised in the legal systems of all signatory member states. The UPC was created on 19 February 2013 when 22+3 EU member states signed the international agreement establishing the Unified Patent Court (UPC).

The agreement for the creation of the UPC was based on an early EU law, called the ‘Brussels I Regulation’. According to the plans, all the necessary decisions (designation of committees, budget, appointment of judges and president, recruitment of staff, facilities, etc.) should be adopted in a manner so as to enable the first registration of a European patent title with unitary effect in spring 2014.

One patent jurisdiction

Yesterday’s agreement in the EU Ministers of Justice Council will enforce the decisions of this court on all the EU member states. The court will have specialised jurisdiction in patent disputes, avoiding multiple litigation cases in up to the 28 different national judicial systems. This will cut costs and lead to swift decisions on the validity or infringement of patents. It is part of a package of measures recently agreed to ensure unitary patent protection in the Single Market.

The European Sting has followed this issue closely. Sting writer Elias Lacon reported on 20 February, “The Central Division of the Court of First Instance will be in Paris…thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A) and another 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)”.

One Court

The next step in this long line of approvals of the UPC will be the vote of this last draft Commission Regulation in the European Parliament, before it can become law. The Parliament’s Legal Affairs (JURI) Committee is expected to vote on its report in February 2014, with a final plenary vote expected in the following month.

After yesterday’s agreement by the Justice Ministers, Michel Barnier, Internal Market Commissioner, commented: “Another decisive step has been made towards the Unitary Patent package becoming a reality, and the Unified Patent Court ensuring much greater consistency in the way patent litigation is conducted in the EU”.

As things stand now, there is an existing single 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. When the UPC will become operational, the first ‘unitary’ patents can be granted in a short timeframe. Neither does it need to be administered in each and every state – there will be one single jurisdiction under the new Court. In this respect the unitary patent will be a single title not requiring validation or translation in other participating member states.

Apart the problems and costs of multiple litigations in many member states, in order to defend or contest a patent, translation has been adding to costs and time-consuming procedures. In the new environment translation will be no problem at all. Of course the Court and the ‘unitary patent’ will be operational only in a few EU languages, Italian and Spanish not included. Probably for this reason, those two countries didn’t sign last February the agreement establishing the UPC. In any case all the other EU countries are to participate from the beginning in the new single European patent space.