Unitary patent spells radical changes for European patent system in 2014

Triniti

On February 19, 2013 in Brussels 24 EU Member States, including Lithuania, signed the international agreement establishing the Unified Patent Court (UPC). Since then, EU started making efforts to create a unified European patent system which is likely to enter into force in the first half of 2014. It will operate in parallel to the current European Patent Organization system and provide the opportunity to acquire the patent protection in all EU Member States, which have signed the agreement, by submitting a single patent application.

After coming into force of the unitary patent system, the applicant will be able to submit an application in line with the ordinary European Patent organization process which has been in existence for a fairly long time. The novelty is that before a decision to issue a patent is made, the applicant will be able to extend the protection by applying for the unitary patent offering the protection in all the participating EU Member States. A decision concerning the protection will have to be made within a month from publication of a decision to issue a patent. A patent itself will be kept in the depository of the European Patent Organization rather than distributed to national patent offices of the Member States, as it is currently the case. Unitary patent will provide protection in 25 out of 27 EU Member States.

Furthermore, for the disputes arising due to unitary patent the Unified European Patent Court (UPC) will be established, which decisions will be obligatory and may be enforced in the 25 participating EU Member States.

Current situation

The current European patent system is complicated and rather fragmented. Firstly, all EU Member States have their national patent protection systems in force which allow acquiring patent protection in that particular state.

Furthermore, the system established by the European Patent Organization (EPOrg) and administered by the European Patent Office (EPO) operates in parallel, which makes patenting an invention in all 38 EPOrg member states easier.

It is noteworthy that neither the European Patent Organization nor the European Patent Office is related to any institutions of the European Union. The European Patent Organization was created by seven European countries which have signed the European Patent Convention back in 1973. Since then, more than thirty states have joined the European Patent Organization.

This system is more of technical or administrative nature. It enables an applicant to submit one application for the European Patent Office, indicating the Member States where the patent protection is sought; however, the inventions are being registered in individual states indicated by an applicant and the protection is granted under the national laws of the states in question. Thereby a national “patent package” is acquired by an applicant in such case. As a result, the patent-related issues, such as validity or infringement of a patent, are then determined by national law and the disputes are to be resolved separately in every state.

Pros and Cons of the new system

The present system could have continued to exist, yet it was undermined by considerable patent registration and maintenance costs that could be borne by a few inventors. The greatest share of the costs came from the translation of the patent applications into national languages of European states (currently 23 official languages of the European Union are used). Due to high costs a few applicants are able to patent their inventions in all European states; several largest markets are chosen instead. In order to solve this problem the idea of creating a Unitary Patent was raised, which is likely to come to life in 2014. Several pros and cons of the new system are provided below.

Firstly, it is expected that the price of patent protection would decrease significantly. At present the applicants have to be well aware of their financial abilities, as the patent protection in all 27 EU Member States might cost up to LTL 100 000 (including translation costs), and that price does not include the initial application fee. In contrast, the entire fee under the new Unitary Patent would be LTL 26 650 for protection in 24 out of 27 EU Member States.

Furthermore, generally equivalent disputes are quite often solved differently in different states. After the establishment of the Unified Patent Court (UPC) its decisions will be obligatory and subject to enforcement in all 25 states.

However, one of the biggest disadvantages of this system is that Italy and Spain, which are among the largest European markets, refused to join it.

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