The Unitary Patent and Unified Patent Court - Disunity in Europe, or mere constructive delay?

Further negotiations within the Competitiveness Council of the EU on plans for a Unitary Patent and a Unified Patent Court ended without agreement on Wednesday, meaning it will be at least the end of June before any final settlement is reached.

Whether this delay in reaching an agreement is a good thing or a bad thing depends very much on what actually happened behind closed doors.

To recap for those not familiar with the proposals, the EU is trying to achieve two objectives.

Firstly, it is trying to achieve the creation of a single Europe-wide ‘Unitary Patent’. The current proposals suggest that this may be achieved in the form of a single patent covering all member states of the EU except Spain and Italy. As readers may be aware, currently on grant a European patent application turns into a ‘bundle’ of national patents which must be validated in each member state to come into force, a process which can be cumbersome and costly if protection in a large number of states is required. There are therefore clear benefits to having a single Unitary Patent, as an alternative operating alongside the present system, simplifying matters for many applicants.

Secondly, the EU is trying to create a single ‘Unified Patent Court’ which would rule over the Unitary Patent and also eventually replace national courts for all litigation relating to nationally validated European patents. Again, this is currently proposed to come into force for all member states of the EU except Spain and Italy.

According to the EU, the only aspect of the proposals yet to be agreed on is the location of the Central Division of the Unified Patent Court. London and Munich appear to be the main contenders to host this court, but other locations in other countries cannot be ruled out in the hope of reaching a compromise.

Of course, if this is indeed the only issue to be decided upon then it paints a rather gloomy picture for the prospect of ever reaching agreement, since according to the EU this has been the ‘only’ issue since December of last year.

On a more encouraging note it could be that the delay in reaching agreement is due to fundamental re-negotiation of some of the proposals. I say encouraging because as many readers will be aware, there has been harsh criticism from across Europe as to many of the details of the proposals, most recently from the European Scrutiny Committee of the House of Commons. Thus it appears that such a re-negotiation, if performed with practical rather than political aims in mind, could greatly benefit end users of the new system.

Without being a fly on the wall in the negotiations it is impossible to know precisely what the current state of play is. No doubt some light will be shed on this by leaks from the various parties over the coming weeks, but we may never get a definitive answer. Only if and when a final agreement is reached will we know with any certainty what the Unitary Patent and the Unified Patent Court will look like.

Stephen Johnson 01 Jun 2012

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