Proposals for a Unitary EU Patent Gather Pace

This article was included in our Spring/Summer 2011 edition of Inside IP magazine.

We previously reported that, following a failure to reach a consensus among all the member states of the European Union, the European Commission had formally presented a proposal to create a single European patent by invoking the “enhanced cooperation” procedure allowed under the Lisbon Treaty.  This permits a group of at least nine Member States to implement a new EU law without having convinced all the remaining Member States to agree.  Under the enhanced cooperation agreement, patents would be examined and granted in one of the official languages of the EPO - English, French or German, and it would be a unitary right enforceable within all participating countries.  Applicants in the EU whose language is not English, French or German would have the option to file applications in any other official language of the European Union, with the costs for translation into one of the official languages of the EPO being refunded.

Since the European Commission submitted their proposal for enhanced cooperation, all the Member States of the EU have agreed to participate apart from Spain and Italy, whose languages have not been recognised as official languagesunder the enhanced cooperation procedure.

On 10th March 2011, the EU Competitiveness Council decided to “give the green light” to start work on the enhanced cooperation of the unified EU patent, despite the lack of any participation by Spain and Italy.  Following this positive response from the EU Council, the European Commission published two draft regulations on the unitary patent on 13th April 2011.  One of these regulations makes it apparent that the EPO would be entrusted with the administration of the unitary patent system including its registration, limitation and revocation, as well as the collection of renewal fees and it would make it possible for a conventional European patent granted by the EPO to be transformed into a unitary patent that is valid for all 25 EU member states, upon request by the patent holder.  The other regulation deals with the translation arrangements for the unitary patent and states that the three official languages of the EPO, English, French and German would be the official languages of the EU patent.  Reliance may also be placed on machine translations so that no further manual translation work is required.

As reported on page 16 of this newsletter, the European Court of Justice (ECJ) in March 2011 gave a negative opinion on the compatibility of the draft agreement to the proposed European and Community Patents Court with the Treaties that underpin the European Union.  The EU Commission subsequently stated that the negative opinion on the proposed European and Community Patents Court by the ECJ should have no impact on the EU patent based on the enhanced cooperation agreement and have indicated that the creation of a unitary patent “has to be accompanied by appropriate jurisdictional arrangements responding to the needs of the users of the patent system.”

Although the EU patent is a step closer to being a reality, it remains to be seen how any eventual EU patent will be litigated and whether the lack of a unified patent litigation system will affect the use of the EU patent by industry.

Resources:

The EU Council press release is available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/119732.pdf

The EU Commission press release is available at: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/269&format=HTML&aged=0&language=EN&guiLanguage=en

Ian Grey 24 May 2011

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