UNITARY PATENT
GETTING PREPARED: THE UNITARY PATENT
The world is looking forward to a new unitary European patent and unifi ed patent court system in Europe, as Bernd Christian Janssen explains.
T e idea to create a European patent valid
throughout the EU is not new. Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was initially a failure. T e CPC was signed at Luxembourg on December 15, 1975 by the then nine member states of the European Economic Community. However, the CPC never entered into force because it was not ratifi ed by a suffi cient number of member states.
Fourteen years later, a new agreement relating to Community patents was signed at Luxembourg. It attempted to revive the CPC project, but failed, with an agreement that was an amended version of the original CPC. Twelve states signed the agreement but, again, it was not ratifi ed by a suffi cient number of member states.
Finally, in December 2012, the European Parliament
approved legislation for the long
expected unitary European patent (UP) (EU regulation 1260/2012) and unifi ed patent court (UPC) system (EU regulation 1260/2012), and
on February 19, 25 EU member states signed an agreement with the intention to participate in the UP (all except Italy, Spain and Croatia) and in the UPC (all except Spain, Poland and Croatia).
T e EU regulations will enter into force aſt er 13 member states have ratifi ed the agreements, including Germany, the UK and France, but not earlier than January 1, 2014. Up to now none of the member states which signed the agreement has ratifi ed it; some member states have announced that a referendum will be held to ratify the agreement. So there is still some uncertainty as to whether the UP and UPC system will come into force, and if so, when.
How the UP works
European patents, aſt er grant, must be validated in the various member states of the European Patent Convention (EPC) becoming a ‘bundle of patents’, each of which must be enforced nationally, with varying litigation durations, costs and possibly varying outcomes. For
94 World Intellectual Property Review September/October 2013
cost reasons many patent holders choose to validate a granted European patent in a few key jurisdictions only.
In EU member states where the patent has not been validated, it is not enforceable. T is makes it diffi cult for a patent holder to enforce the patent against counterfeiters, even in member states where the patent was validated. T is is because import into the EU can legally occur through borders of member states where the patent has not been validated, and once in the EU goods may be diffi cult to track.
T is will, at least in part, change when the UP comes into force. Aſt er grant of a European patent by the European Patent Offi ce (EPO), the patent holder may request that the granted European patent be registered as a UP. T e UP would, once established, be valid in all participating EU member states. T e UP reduces translation requirements by focusing on the three languages of the European patent (German, English and French), reducing maintenance fees with a single
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