Unitary European patent proposal – an update
There continues to be a strong political desire for progress to be made on setting up a system for obtaining a unitary EU patent.
The EU Competitiveness Council has agreed to move forward with the unitary system that has been proposed by 25 of the 27 EU
member states under the “enhanced cooperation” provisions of EU law, and the EU Parliament is due to review the proposal in
November 2011. Italy and Spain remain opposed to the system, however, and these countries have now submitted formal legal
challenges to the proposal and the use of the enhanced cooperation system to implement an EU patent without them. It remains
to be seen whether either of the challenges holds any weight, but it seems likely that they will delay progress.
The proposals are based on a unitary patent right for the participating EU countries being obtained following the grant of a patent
by the European Patent Office (EPO), so that, in effect, the EPO patent becomes validated as a unitary European patent, covering
the participating EU countries. Only a single renewal fee would be required annually to maintain the unitary right in force in all
these countries.
EPO patents are granted in English, French or German, with the claims being translated into the remaining two languages as part
of the grant procedure, and the intention is that, in the long term, the validation of an EPO patent as a unitary European patent
will not require any further translations. However, the current proposal involves a transitional provision, under which one translation
will be required for the EPO patent to take effect as a unitary European patent. The transitional provision would stay in place for
a maximum of 12 years.
The proposals also bring in a unified patent litigation system, which involves a new patent court that will be set up by the
participating EU member countries only. This patent court would therefore fall directly within the judicial system of the EU. This
court would be able to consider infringement and validity for EPO patents that have been validated in EU countries on a national
basis as well as EPO patents brought into effect as an EU unitary patent right.
We will report on further progress in due course.
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