Legal Alert – Unitary EU Patent Regime Approved by the European Parliament
UNITARY PATENT SYSTEM TO BE ADOPTED WITHIN THE EU
The European Parliament has on 11 December 2012 approved the EU patent package concerning regulations on the unitary patent and translation arrangements as well as the European Parliament’s own-initiative on jurisdictional system for patent disputes. The EU patent package is designed to implement enhanced cooperation in the area of the creation of unitary patent protection between 25 participating EU Member States (excluding Italy and Spain).
BOOST OF COMPETITIVENESS FOR THE EUROPEAN BUSINESSES
The approved EU patent package is a product of decades of preparation. The key aim is to boost competitiveness of the European companies and to cut the costs of an EU patent by up to 80 %. In the current system the European Patent based on the European Patent Convention requires national validation in all Member States where protection is sought, with an average overall cost of validation approximately EUR 12,500 if validated in 13 Member States and over EUR 32,000 if validated within the whole EU, whereas the cost of US patent is reportedly about EUR 1,800. The European patent with unitary effect would cut costs by reducing translation requirements as well as litigation costs in case of a dispute. The latter element is however dependent on a separate agreement by the Member States and subsequent ratification of the agreement on the Unitary Patent Court. The European Parliament urged the Member States to conclude the negotiations and to ratify the Agreement on the Unified Patent Court in its own- initiative approved as part of the EU patent package. The participating Member States have reached a consensus on the seat of the Court which in effect will be divided between Paris, London and Munich.
A COMPROMISE BUILT ON THE EXISTING EPC SYSTEM
The patent package is based on a compromise text achieved during the reign of the Cyprus Presidency addressing the concerns presented by the Member States and the Court of Justice. The compromise was achieved by means of deleting the debated articles (art. 6-8) from the Regulations and moving them to the draft agreement on the Unified Patent Court to be signed and ratified in early 2013 by at least 13 of the participating Member States. The European patent with unitary effects builds on the existing European patent system governed by the European Patent Office (EPO) and it will co-exist alongside with the national and European patents.
The proprietor of the European patent may within one month after the grant of the European patent apply for the registration of the unitary effect. Once registered, the unified effect will provide a uniform protection for the patent. The applications will be submitted to the EPO, to which also the renewal fees will be paid.
The translation requirements of a European patent application with unitary effects will be reduced to one of the EPO official languages (English, French or German), including additionally the translation of the claims into the other two official languages. Further translations are only required in case of a dispute into the language of the participating Member State of which the alleged infringement took place or in which the alleged infringer is domiciled. According to the regulations, once available, machine translations of the patent applications will be provided in all EU languages, however this will take time.
Regarding translation requirements, in case of a patent dispute including a claim for compensation, the court hearing the case shall take into account whether the alleged infringer may have acted without knowing or having reasonable grounds to know that he was infringing the patent, especially if the alleged infringer is a small or medium-sized enterprise (SME), a natural person, a non-profit organisation, a university or a public research organisation. The European Parliament also addressed the competitiveness of SMEs by introducing a full reimbursement of the translation costs for them.
ENTRY INTO FORCE
The approved Regulations will enter into force on 1 January 2014 provided the Agreement on the Unified Patent Court has also been ratified and in force at the time.