EU members participating in the unitary patent regulation (including the UK during the transition period) which have also ratified the UPC Agreement
(unitary patents will only apply for these states)
EU members participating in the unitary patent regulation which have not ratified the UPC Agreement
(unitary patents will not apply for these states)
EU members neither participating in the unitary patent regulation nor in the UPC Agreement
(eligible for participation in the future)
Other European Patent Convention parties
(no participation possible)
|European patent law|
The European patent with unitary effect, more commonly known as the unitary patent, is a new type of European patent in advanced stage of adoption which would be valid in participating member states of the European Union.[notes 1] Unitary effect can be registered for a European patent upon grant, replacing validation of the European patent in the individual countries concerned. The unitary effect means a single renewal fee, a single ownership, a single object of property, a single court (the Unified Patent Court) and uniform protection—which means that revocation as well as infringement proceedings are to be decided for the unitary patent as a whole rather than for each country individually. Licensing is however to remain possible for part of the unitary territory.
On 17 December 2012, agreement was reached between the European Council and European Parliament on the two EU regulations that made the unitary patent possible through enhanced cooperation at EU level. The legality of the two regulations was challenged by Spain and Italy, but all their claims were rejected by the European Court of Justice. Italy subsequently joined the unitary patent regulation in September 2015, so that all EU member states except Spain and Croatia now participate in the enhanced cooperation for a unitary patent. Unitary effect of newly granted European patents can be requested from the date when the related Unified Patent Court Agreement enters into force for the first group of ratifiers,[notes 2] and will extend to those participating member states for which the UPC Agreement had entered into force at the time of registration of the unitary patent. Previously granted unitary patents will not automatically get their unitary effect extended to the territory of participating states which ratify the UPC agreement at a later date.
The negotiations which resulted in the unitary patent can be traced back to various initiatives dating to the 1970s. At different times, the project, or very similar projects, have been referred to as the "European Union patent" (the name used in the EU treaties, which serve as the legal basis for EU competency), "EU patent", "Community patent", "European Community Patent", "EC patent" and "COMPAT".
By not requiring translations into a language of each contracting state, and by requiring the payment of only a single renewal fee for the group of contracting states, the unitary patent aims to be cheaper than European patents. Instead, unitary patents will be accepted in English, French, or German with no further translation required after grant.[notes 3] Machine translations will be provided, but will be, in the words of the regulation, "for information purposes only and should not have any legal effect". The maintenance fees, with a single fee for the whole area, are also expected to be lower compared to renewal fees for the whole area but the fees have yet to be announced.
The proposed unitary patent will be a particular type of European patent, granted under the European Patent Convention. A European patent, once granted, becomes a "bundle of nationally enforceable patents", in the states which are designated by the applicant, and the unitary effect would effectively create a single enforceable region in a subgroup of those 38 states, which may coexist with nationally enforceable patents ("classical" patents) in the remaining states.[notes 4] "Classical", non-unitary European patents hold exclusively for single countries and require the filing of a translation in some contracting states, in accordance with Article 65 EPC.[notes 5]
On 18 January 2019, Kluwer Patent Blog wrote, "a recurring theme for some years has been that 'the UPC will start next year'". Then, Brexit and German constitutional court complaint by Dr Stjerna were considered as the main objects. The UK ratified the agreement in April 2018 and intends[needs update] to remain in the UPC even after Brexit but how this is possible is subject to debate. The German constitutional court complaint was expected to be decided in 2019 but it did not happen. For 2020 the challenge was again on the list of cases. With a decision of 13 February 2020, the German Federal Constitutional Court found the complaint justified and, thus, suspended the ratification process.
In 2009, three draft documents were published regarding a community patent: a European patent in which the European Community was designated:
- Council regulation on the community patent,
- Agreement on the European and Community Patents Court (open to the European Community and all states of the European Patent Convention)
- Decision to open negotiations regarding this Agreement
Based on those documents, the European Council requested on 6 July 2009 an opinion from the Court of Justice of the European Union, regarding the compatibility of the envisioned Agreement with EU law: "'Is the envisaged agreement creating a Unified Patent Litigation System (currently named European and Community Patents Court) compatible with the provisions of the Treaty establishing the European Community?’"
In December 2010, the use of the enhanced co-operation procedure, under which Articles 326–334 of the Treaty on the Functioning of the European Union provides that a group of member states of the European Union can choose to co-operate on a specific topic, was proposed by twelve Member States to set up a unitary patent applicable in all participating European Union Member States. The use of this procedure had only been used once in the past, for harmonising rules regarding the applicable law in divorce across several EU Member States.
In early 2011, the procedure leading to the enhanced co-operation was reported to be progressing. Twenty-five Member States had written to the European Commission requesting to participate, with Spain and Italy remaining outside, primarily on the basis of ongoing concerns over translation issues. On 15 February, the European Parliament approved the use of the enhanced co-operation procedure for unitary patent protection by a vote of 471 to 160. and on 10 March 2011 the Council gave their authorisation. Two days earlier, on 8 March 2011, the Court of Justice of the European Union had issued its opinion, stating that the draft Agreement creating the European and Community Patent Court would be incompatible with EU law. The same day, the Hungarian Presidency of the Council insisted that this opinion would not affect the enhanced co-operation procedure.
In November 2011, negotiations on the enhanced co-operation system were reportedly advancing rapidly—too fast, in some views. It was announced that implementation required an enabling European Regulation, and a Court agreement between the states that elect to take part. The European Parliament approved the continuation of negotiations in September. A draft of the agreement was issued on 11 November 2011 and was open to all member states of the European Union, but not to other European Patent Convention states. However, serious criticisms of the proposal remained mostly unresolved. A meeting of the Competitiveness Council on 5 December failed to agree on the final text. In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located, "with London, Munich and Paris the candidate cities."
The Polish Presidency acknowledged on 16 December 2011 the failure to reach an agreement "on the question of the location of the seat of the central division." The Danish Presidency therefore inherited the issue. According to the President of the European Commission in January 2012, the only question remaining to be settled was the location of the Central Division of the Court. However, evidence presented to the UK House of Commons European Scrutiny Committee in February suggested that the position was more complicated. At an EU summit at the end of January 2012, participants agreed to press on and finalise the system by June. On 26 April, Herman Van Rompuy, President of the European Council, wrote to members of the Council, saying "This important file has been discussed for many years and we are now very close to a final deal,.... This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council." The Competitiveness Council met on 30 May and failed to reach agreement.
A compromise agreement on the seat(s) of the unified court was eventually reached at the June European Council (28–29 June 2012), splitting the central division according to technology between Paris (the main seat), London and Munich. However, on 2 July 2012, the European Parliament decided to postpone the vote following a move by the European Council to modify the arrangements previously approved by MEPs in negotiations with the European Council. The modification was considered controversial and included the deletion of three key articles (6–8) of the legislation, seeking to reduce the competence of the European Union Court of Justice in unitary patent litigation. On 9 July 2012, the Committee on Legal Affairs of the European Parliament debated the patent package following the decisions adopted by the General Council on 28–29 June 2012 in camera in the presence of MEP Bernhard Rapkay. A later press release by Rapkay quoted from a legal opinion submitted by the Legal Service of the European Parliament, which affirmed the concerns of MEPs to approve the decision of a recent EU summit to delete said articles as it "nullifies central aspects of a substantive patent protection". A Europe-wide uniform protection of intellectual property would thus not exist with the consequence that the requirements of the corresponding EU treaty would not be met and that the European Court of Justice could therefore invalidate the legislation. By the end of 2012 a new compromise was reached between the European Parliament and the European Council, including a limited role for the European Court of Justice. The Unified Court will apply the Unified Patent Court Agreement, which is considered national patent law from an EU law point of view, but still is equal for each participant. [However the draft statutory instrument aimed at implementation of the Unified Court and UPC in the UK provides for different infringement laws for: European patents (unitary or not) litigated through the Unified Court; European patents (UK) litigated before UK courts; and national patents]. The legislation for the enhanced co-operation mechanism was approved by the European Parliament on 11 December 2012 and the regulations were signed by the European Council and European Parliament officials on 17 December 2012.
On 30 May 2011, Italy and Spain challenged the Council's authorisation of the use of enhanced co-operation to introduce the trilingual (English, French, German) system for the unitary patent, which they viewed as discriminatory to their languages, with the CJEU on the grounds that it did not comply with the EU treaties. In January 2013, Advocate General Yves Bot delivered his recommendation that the court reject the complaint. Suggestions by the Advocate General are advisory only, but are generally followed by the court. The case was dismissed by the court in April 2013, however Spain launched two new challenges with the EUCJ in March 2013 against the regulations implementing the unitary patent package. The court hearing for both cases was scheduled for 1 July 2014. Advocate-General Yves Bot published his opinion on 18 November 2014, suggesting that both actions be dismissed (ECLI:EU:C:2014:2380 and ECLI:EU:C:2014:2381). The court handed down its decisions on 5 May 2015 as ECLI:EU:C:2015:298 and ECLI:EU:C:2015:299 fully dismissing the Spanish claims. Following a request by the government of Italy, it became a participant of the unitary patent regulations in September 2015.
European patents are granted in accordance with the provisions of the European Patent Convention, via a unified procedure before the European Patent Office. A single patent application, in one language, may be filed at the European Patent Office or at a national patent office of certain Contracting States.[notes 6] Patentable inventions, according to the EPC, are "any inventions, in all fields of technology, providing that they are new, involve an inventive step, and are susceptible of industrial application."
In contrast to the unified character of a European patent application, a granted European patent has, in effect, no unitary character, except for the centralized opposition procedure (which can be initiated within 9 months from grant, by somebody else than the patent proprietor), and the centralized limitation and revocation procedures (which can only be instituted by the patent proprietor). In other words, a European patent in one Contracting State, i.e. a "national" European patent,[notes 7] is effectively independent of the same European patent in each other Contracting State, except for the opposition, limitation and revocation procedures. The enforcement of a European patent is dealt with by national law. The abandonment, revocation or limitation of the European patent in one state does not affect the European patent in other states.
The EPC provides however the possibility for a group of member states to allow European patents to have a unitary character also after grant. Until now, only Liechtenstein and Switzerland have opted to create a unified protection area (see Unitary patent (Switzerland and Liechtenstein)).
Upon filing of a European patent application, all 38 Contracting States are automatically designated, unless, when filing the application, the applicant withdraws one or more designations. This may be important to avoid conflicts with national (non-European patent) applications. Designations may also be withdrawn after filing, at any time before grant. Upon grant, a European patent has immediate effect in all designated States, but to remain effective, yearly renewal fees have to be paid, in each State, and in certain countries translation requirements have to be met.
Legal basis and implementation
Three instruments were proposed for the implementation of the unitary patent:
- Regulation of the European Parliament and of the Council implementing enhanced co-operation in the area of the creation of unitary patent protection
- Council Regulation implementing enhanced co-operation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements
- Agreement on a Unified Patent Court
The system is based on EU law as well as the European Patent Convention (EPC). Article 142 EPC provides the legal basis for establishing a common system of patents for Parties to the EPC. Previously, only Liechtenstein and Switzerland had used this possibility to create a unified protection area (see Unitary patent (Switzerland and Liechtenstein)).
Regulations regarding the unitary patent
|European Union regulation|
|Text adopted under the Enhanced cooperation procedure|
|Title||1257/2012: Implementing enhanced cooperation in the area of the creation of unitary patent protection|
1260/2012: Implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements
|Applicability||All current EU members, except Spain and Croatia.|
|Made by||European Parliament and Council|
|Made under||Article 118 of the TFEU, and |
Council Decision 2011/167/EU authorising enhanced cooperation.
|Journal reference||L361, 31.12.2012, p.1-8, 89-92|
|Date made||17 December 2012|
|Came into force||20 January 2013|
|Implementation date||Applies from the date the UPC Agreement enters into force|
The first two regulations were approved by the European Parliament on 11 December 2012, with future application set for the 25 member states then participating in the enhanced cooperation for a unitary patent (all current EU member states except Croatia, Italy and Spain). The instruments were adopted as regulations EU 1257/2012 and 1260/2012 on 17 December 2012, and entered into force in January 2013. Following a request by the government of Italy, it became a participant of the unitary patent regulations in September 2015.
As of March 2017, neither of the two remaining non-participants in the unitary patent (Spain and Croatia) had requested the European Commission to participate.
Although formally the Regulations will apply to all 26 participating states from the moment the UPC Agreement enters into force for the first group of ratifiers,[notes 2] the unitary effect of newly granted unitary patents will only extend to those of the 26 states where the UPC Agreement has entered into force, while patent coverage for other participating states without UPC Agreement ratification will be covered by a coexisting normal European patent in each of those states.
The unitary effect of unitary patents means a single renewal fee, a single ownership, a single object of property, a single court (the Unified Patent Court) and uniform protection, which means that revocation as well as infringement proceedings are to be decided for the unitary patent as a whole rather than for each country individually. Licensing is however to remain possible for part of the unitary territory.
Role of the European Patent Office
Some administrative tasks relating to the European patents with unitary effect will be performed by the European Patent Office. These tasks include the collection of renewal fees and registration of unitary effect upon grant, exclusive licenses and statements that licenses are available to any person. Decisions of the European Patent Office regarding the unitary patent are open to appeal to the Unified Patent Court, rather than to the EPO Boards of Appeal.
For a unitary patent ultimately no translation will be required, which significantly reduces the cost for protection in the whole area. However, article 6 of EU regulation 1260/2012 provides that during a transition period of no more than twelve years one translation needs to be provided. A translation needs to be provided either into English if the application is in French or German, or into any EU official language if the application is in English. In addition, machine translations will be provided, which will be, in the words of the regulation, "for information purposes only and should not have any legal effect".
In several contracting states, for "national" European patents a translation has to be filed within a three-month time limit after the publication of grant in the European Patent Bulletin under Article 65 EPC,[notes 8] otherwise the patent is considered never to have existed (void ab initio) in that state. For the 21 parties to the London Agreement, this requirement has already been abolished or reduced (e.g. by dispensing with the requirement if the patent is available in English, and/or only requiring translation of the claims). Translation requirements for the participating states in the enhanced cooperation for a unitary patent are shown below:
|Participating member State||Translation requirements for a non-unitary European patent||Translation requirements for a unitary patent|
|France, Germany, Ireland, Luxembourg, United Kingdom||None||None (transitional period: one translation, so that the unitary patent is available during the transitional period in English and at least another EU official language)|
|Latvia, Lithuania, Slovenia||Claims in the official language of the concerned State|
|Denmark, Finland, Hungary, Netherlands, Sweden||Description in English, claims in the official language of the concerned State|
|Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Malta, Poland, Portugal, Romania, Slovakia||Translation of the complete patent in an official language of the concerned State|
Unitary patent as an object of property
Article 7 of Regulation 1257/2012 provides that, as an object of property, a European patent with unitary effect will be treated "in its entirety and in all participating Member States as a national patent of the participating Member State in which that patent has unitary effect and in which the applicant had her/his residence or principal place of business or, by default, had a place of business on the date of filing the application for the European patent." When the applicant had no domicile in a participating Member State, German law will apply. Ullrich has the criticized the system, which is similar to the Community Trademark and the Community Design, as being "in conflict with both the purpose of the creation of unitary patent protection and with primary EU law."
Implementation of the regulations at the EPO
In January 2013, after the two regulations about the unitary patent had entered into force, but before the regulations applied, the participating member states in the unitary patent established (as member states of the European Patent Convention) a Select Committee of the Administrative Council of the European Patent Organisation in order to prepare the work for implementation of the provisions. The committee held its inaugural meeting on 20 March 2013. The work of the Select Committee has to proceed in parallel to the work of the Preparatory Committee for the creation of the Unified Patent Court. Implementation of the Unitary Patent—including the legal, administrative and financial measures—shall be completed in due time before the entry into operation of the Unified Patent Court. In May 2015, the communicated target date for completion of the remaining preparatory work of the Select Committee was 30 June 2015. The Committee reached agreement on the level of the renewal fees June 2015, while it stated that a decision on the distribution of those fees among member states was in Autumn 2015.
Agreement on a Unified Patent Court
The Agreement on a Unified Patent Court provides the legal basis for the Unified Patent Court: a patent court for European patents (with and without unitary effect), with jurisdiction in those countries where the Agreement is in effect. In addition to regulations regarding the court structure, it also contains substantive provisions relating to the right to prevent use of an invention and allowed use by non-patent proprietors (e.g. for private non-commercial use), preliminary and permanent injunctions.
The Agreement was signed on 19 February 2013 by 24 EU member states, including all states then participating in the enhanced co-operation measures except Bulgaria and Poland, while Italy, which did not originally join the enhanced co-operation measures but subsequently signed up, did sign the UPC agreement. The agreement remains open to accession for all remaining EU member states, and Bulgaria signed the agreement on 5 March. Meanwhile, Poland decided to wait to see how the new patent system works before joining due to concerns that it would harm their economy. States which do not participate in the unitary patent regulations can still become parties to the UPC agreement, which would allow the new court to handle European patents validated in the country. Entry into force for the UPC will take place after 13 states (including Germany, France and the United Kingdom as the three states with the most patents in force) have ratified the Agreement. As of November 2015, the agreement has been ratified by 8 states (including 1 of the required ratifiers: France).
The Unified Patent Court will have exclusive jurisdiction in infringement and revocation proceedings involving European patents with unitary effect, and during a transition period non-exclusive jurisdiction (that the patent holder can be opt out from) regarding European patents without unitary effect in the states where the Agreement applies. It furthermore has jurisdiction to hear cases against decisions of the European Patent Office regarding unitary patents. As a court of several member states of the European Union it may (Court of First Instance) or must (Court of Appeal) ask prejudicial questions to the European Court of Justice when the interpretation of EU law (including the two unitary patent regulations, but excluding the UPC Agreement) is not obvious.
The court would have two divisions: a court of first instance and a court of appeal. The court of appeal and the registry would have their seats in Luxembourg, while the central division of the court of first instance would have its seat in Paris. The central division would have thematic branches in London and Munich. The court of first instance may further have local and regional divisions in all member states that wish to set up such divisions.
Geographical scope of and request for unitary effect
While the regulations formally apply to all 26 member states participating in the enhanced cooperation for a unitary patent, from the date the UPC agreement has entered into force for the first group of ratifiers,[notes 2] unitary patents will only extend to the territory of those participating member states where the UPC Agreement had entered into force when the unitary effect was registered. If the unitary effect territory subsequently expands to additional participating member states for which the UPC Agreement later enters into force, this will be reflected for all subsequently registered unitary patents, but the territorial scope of the unitary effect of existing unitary patents will not be extended to these states.
Unitary effect can be requested up to one month after grant of the European patent, with retroactive effect from the date of grant. However, according to the Draft Rules Relating to Unitary Patent Protection, unitary effect would be registered only if the European patent has been granted with the same set of claims[notes 9] for all the 26 participating member states in the regulations,[notes 10] whether the unitary effect applies to them or not. European patents automatically become a bundle of "national" European patents upon grant. Upon the grant of unitary effect, the "national" European patents will retroactively be considered to never have existed in the territories where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.
Special territories of participating member states
As the unitary patent is introduced by an EU regulation, it is expected to not only be valid in the mainland territory of the participating member states that are party to the UPC, but also in those of their special territories that are part of the European Union. As of April 2014, this includes the following fourteen territories:
- Cyprus: UN Buffer Zone
- Finland: Åland
- France: French Guiana, Guadeloupe, Martinique, Mayotte, Réunion, Saint Martin
- Germany: Büsingen am Hochrhein, Helgoland
- Greece: Mount Athos
- Portugal: Azores, Madeira
- United Kingdom: Gibraltar[notes 11]
In addition to the territories above, the European Patent Convention has been extended by three member states participating in the enhanced cooperation for a unitary patent to cover some of their dependent territories outside the European Union:
- France: French Polynesia, French Southern and Antarctic Lands, New Caledonia, Saint Barthélemy, Saint-Pierre and Miquelon, Wallis and Futuna
- Netherlands: Caribbean Netherlands, Curaçao, Sint Maarten
- UK: Isle of Man
Among the dependencies in the second list, the Isle of Man as well as Caribbean Netherlands, Curaçao and Sint Maarten intend to apply the unitary patent. The 2019 amendment of the Dutch Patents act extends the unitary patent regulation to these territories after it has entered into force. Entry into force is conditional on extension of the Unified Patent Court agreement to these territories. and extends the unified patent court agreement there as well. Legislative implementation for the Isle of Man was provided in The Patents (Isle of Man) (Amendment) Order 2017, which enters into force upon entry into force of the Unified Patent Court Agreement.
The renewal fees of the unitary patent range from 32 Euro in the second year to 4855 in the 20th year as is based on the cumulative renewal fees of Germany, France, the UK and the Netherlands, the 4 states in which most European patents are in force.
Translation requirements as well as the requirement to pay yearly patent fees in all countries in which a European patent is designated, presently renders the European patent system costly in the European Union. In an impact assessment the European Commission estimated that the costs of obtaining a patent in all 27 EU countries would drop from over 32 000 euro (mainly due to translation costs) to 6 500 euro (for the combination of an EU, Spanish and Italian patent) due to introduction of the EU patent. Per capita costs of an EU patent were estimated at just 6 euro/million in the original 25 participating countries (and 12 euro/million in the 27 EU countries for protection with an EU, Italian and Spanish patent).
How the EU Commission has presented the expected cost savings has however been sharply criticized as exaggerated and based on unrealistic assumptions. The EU Commission has notably considered the costs for validating a European patent in 27 countries while in reality only about 1% of all granted European patents are currently validated in all 27 contracting states. Based on more realistic assumptions, the cost savings are expected to be much lower than actually claimed by the Commission.
1970s and 1980s: proposed Community Patent Convention
Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure.
The "Luxembourg Conference on the Community Patent" took place in 1975 and the Convention for the European Patent for the common market, or (Luxembourg) Community Patent Convention (CPC), was signed at Luxembourg on 15 December 1975, by the 9 member states of the European Economic Community at that time. However, the CPC never entered into force. It was not ratified by enough countries.
Fourteen years later, the Agreement relating to Community patents was made at Luxembourg on 15 December 1989. It attempted to revive the CPC project, but also failed. This Agreement consisted of an amended version of the original Community Patent Convention. Twelve states signed the Agreement: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, and United Kingdom. All of those states would need to have ratified the Agreement to cause it to enter into force, but only seven did so: Denmark, France, Germany, Greece, Luxembourg, the Netherlands, and United Kingdom.
Nevertheless, a majority of member states of the EEC at that time introduced some harmonisation into their national patent laws in anticipation of the entry in force of the CPC. A more substantive harmonisation took place at around the same time to take account of the European Patent Convention and the Strasbourg Convention.
2000 to 2004: EU Regulation proposal
In 2000, renewed efforts from the European Union resulted in a Community Patent Regulation proposal, sometimes abbreviated as CPR. It provides that the patent, once it has been granted by the European Patent Office (EPO) in one of its procedural languages (English, German or French) and published in that language, with a translation of the claims into the two other procedural languages, will be valid without any further translation. This proposal is aimed to achieve a considerable reduction in translation costs.
Nevertheless, additional translations could become necessary in legal proceedings against a suspected infringer. In such a situation, a suspected infringer who has been unable to consult the text of the patent in the official language of the Member State in which he is domiciled, is presumed, until proven otherwise, not to have knowingly infringed the patent. To protect a suspected infringer who, in such a situation, has not acted in a deliberate manner, it is provided that the proprietor of the patent will not be able to obtain damages in respect of the period prior to the translation of the patent being notified to the infringer.
The proposed Community Patent Regulation should also establish a court holding exclusive jurisdiction to invalidate issued patents; thus, a Community Patent's validity will be the same in all EU member states. This court will be attached to the present European Court of Justice and Court of First Instance through use of provisions in the Treaty of Nice.
Discussion regarding the Community patent had made clear progress in 2003 when a political agreement was reached on 3 March 2003. However, one year later in March 2004 under the Irish presidency, the Competitiveness Council failed to agree on the details of the Regulation. In particular the time delays for translating the claims and the authentic text of the claims in case of an infringement remained problematic issues throughout discussions and in the end proved insoluble.
In view of the difficulties in reaching an agreement on the community patent, other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and litigation, namely the London Agreement, which entered into force on 1 May 2008—and which has reduced the number of countries requiring translation of European patents granted nowadays under the European Patent Convention, and the corresponding costs to obtain a European patent—and the European Patent Litigation Agreement (EPLA), a proposal that has now lapsed.
Reactions to the failure
After the council in March 2004, EU Commissioner Frits Bolkestein said that "The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010." Adding:
It is a mystery to me how Ministers at the so-called 'Competitiveness Council' can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year. I can only hope that one day the vested, protectionist interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. That day has not yet come.
Jonathan Todd, Commission's Internal Market spokesman, declared:
Normally, after the common political approach, the text of the regulation is agreed very quickly. Instead, some Member States appear to have changed their positions. (...) It is extremely unfortunate that European industry's competitiveness, innovation and R&D are being sacrificed for the sake of preserving narrow vested interests.
European Commission President Romano Prodi, asked to evaluate his five-year term, cites as his weak point the failure of many EU governments to implement the "Lisbon Agenda", agreed in 2001. In particular, he cited the failure to agree on a Europewide patent, or even the languages to be used for such a patent, "because member states did not accept a change in the rules; they were not coherent".
Support for the Regulation
There is support for the Community patent from various quarters. From the point of view of the European Commission the Community Patent is an essential step towards creating a level playing field for trade within the European Union. For smaller businesses, if the Community patent achieves its aim of providing a relatively inexpensive way of obtaining patent protection across a wide trading area, then there is also support.
For larger businesses, however, other issues come into play, which have tended to dilute overall support. In general, these businesses recognise that the current European Patent system provides the best possible protection given the need to satisfy national sovereignty requirements such as regarding translation and enforcement. The Community Patent proposal was generally supported if it would do away with both of these issues, but there was some concern about the level of competence of the proposed European Patent Court. A business would be reluctant to obtain a Europe-wide patent if it ran the risk of being revoked by an inexperienced judge. Also, the question of translations would not go away – unless the users of the system could see significant change in the position of some of the countries holding out for more of a patent specification to be translated on grant or before enforcement, it was understood that larger businesses (the bulk of the users of the patent system) would be unlikely to move away from the tried and tested European Patent.
Since 2005: stalemate and new debate
Thus, in 2005, the Community patent looked unlikely to be implemented in the near future. However, on 16 January 2006 the European Commission "launched a public consultation on how future action in patent policy to create an EU-wide system of protection can best take account of stakeholders' needs." The Community patent was one of the issues the consultation focused on. More than 2500 replies were received. According to the European Commission, the consultation showed that there is widespread support for the Community patent but not at any cost, and "in particular not on the basis of the Common Political Approach reached by EU Ministers in 2003".
The proposal for an EU-wide patent is stuck in the mud. It is clear to me from discussions with member states that there is no consensus at present on how to improve the situation.
The European Commission released a white paper in April 2007 seeking to "improve the patent system in Europe and revitalise the debate on this issue." On 18 April 2007, at the European Patent Forum in Munich, Germany, Günter Verheugen, Vice-President of the European Commission, said that his proposal to support the European economy was "to have the London Agreement ratified by all member states, and to have a European patent judiciary set up, in order to achieve rapid implementation of the Community patent, which is indispensable". He further said that he believed this could be done within five years.
In October 2007, the Portuguese presidency of the Council of the European Union proposed an EU patent jurisdiction, "borrowing heavily from the rejected draft European Patent Litigation Agreement (EPLA)". In November 2007, EU ministers were reported to have made some progress towards a community patent legal system, with "some specific results" expected in 2008.
In 2008, the idea of using machine translations to translate patents was proposed to solve the language issue, which is partially responsible for blocking progress on the community patent. Meanwhile, European Commissioner for Enterprise and Industry Günter Verheugen declared at the European Patent Forum in May 2008 that there was an "urgent need" for a community patent.
Agreement in December 2009, and language issue
In December 2009, it was reported that the Swedish EU presidency had achieved a breakthrough in negotiations concerning the community patent. The breakthrough was reported to involve setting up a single patent court for the EU, however ministers conceded much work remained to be done before the community patent would become a reality.
According to the agreed plan, the EU would accede to the European Patent Convention as a contracting state, and patents granted by the European Patent Office will, when validated for the EU, have unitary effect in the territory of the European Union. On 10 November 2010, it was announced that no agreement had been reached and that, "in spite of the progress made, [the Competitiveness Council of the European Union had] fallen short of unanimity by a small margin," with commentators reporting that the Spanish representative, citing the aim to avoid any discrimination, had "re-iterated at length the stubborn rejection of the Madrid Government of taking the 'Munich' three languages regime (English, German, French) of the European Patent Convention (EPC) as a basis for a future EU Patent."
- All EU member states except Spain, which abstained due to the exclusive use of English, French, and German languages, and Croatia, which subsequently acceded to the EU, joined the unitary patent regulation. States will only participate in the unitary patent if they ratify the UPC Agreement.
- All EU states may ratify or accede to the Agreement. Entry into force for the first group of ratifiers requires ratification by Germany, UK, France and at least ten additional states. As of March 2017, it has been ratified by France and 11 additional states.
- There is a transition period of maximum 12 years during which there will be one translation made, either into English if the application is in French or German, or into any EU official language if the application was in English.
- Similarly, Switzerland and Liechtenstein created a separate unitary patent under the European Patent Convention. However, the unitary patent for Switzerland and Liechtenstein is the only possible way to obtain a patent in these two countries. It is not possible to obtain a patent only in Switzerland but not Liechtenstein, or only in Liechtenstein but not Switzerland. In contrast, the existence of the EU unitary patent will still permit a patent proprietor not to choose the EU unitary patent and to rather select specific countries.
- Although the filing of a translation under Article 65 EPC is often referred to as "validation", this term is in fact not used in the European Patent Convention. In designated states where no translation is required, no "rubber-stamping" -or any kind of additional examination- by the national patent office of the designated state is permitted.
- However, divisional applications cannot be filed with a national patent office. They have to be filed with the European Patent Office (Article 76(1) EPC in conjunction with Rule 36(2) EPC).
- There is no consistent usage of a particular expression to refer to "the European patent in a particular designated Contracting State for which it is granted". The article uses the expression "a "national" European patent"
- Article 2(2) EPC provides that "[t]he European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides otherwise." The provision of Article 65 EPC may therefore be viewed as an exception to Article 2(2) EPC. See also London Agreement (2000).
- A European patent may be granted by the EPO with claims which are, for one or more States, different from those applicable to the other designated States. This rare situation may arise by virtue of Rule 18(2) EPC or Rule 138 EPC.
- This requires that all 26 states participating in the enhanced cooperation regulations have been designated upon filing of the European patent application. For European patent applications filed after 1 April 2009, all Contracting States party to the EPC at the time of filing of the application are automatically designated, although designations may be withdrawn before grant. It was not possible to designate Malta before it became a party to the EPC on 1 March 2007.
- Gibraltar automatically participates EU regulations as part of the UK. As of June 2014, the UK had neither extended the European Patent Convention nor the Paris Convention (which is a requirement for becoming an EPC party) and the Patent Cooperation Treaty to Gibraltar. Therefore, European patents valid in the UK are not automatically valid in Gibraltar, and the UK government and EPO have listed the status for European Patents granted in UK as "unknown" in Gibraltar. According to the 1997 version of the patents act, patent granted for the UK can be extended to cover Gibraltar if the patent holder applies for registration within three years of its grant. The first version of a UK government draft law planned to extend the UK unitary patent implementation legislation and UPC Agreement to the Isle of Man, and not to Gibraltar.
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We must urgently reach agreement on the European patent. We have been discussing this for decades. I fully expect negotiations on this to be completed early in the Danish Presidency. I call on the three Member States, France, Germany and the United Kingdom, who are holding this up over a site issue of some offices, to swiftly find a compromise. Frankly, it is not acceptable! It is not acceptable that such a crucial initiative is blocked over such a trivial disagreement.
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Neil Feinson: There is more than one issue outstanding. There is one very big issue, which is the location, and then there are a lot of technical issues that are outstanding.
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The participating Member States commit to reaching at the latest in June 2012 a final agreement on the last outstanding issue in the patent package.
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- Article 2(1) EPC
- Article 14 EPC
- Article 75(1)(b) EPC
- Article 52(1) EPC.
- In addition to the opposition, limitation and revocation procedures, particular acts can still be performed before the EPO after grant, such as requesting a rectification of an incorrect designation of inventor under Rule 21(1) EPC. "Rectification may [indeed] also be requested after the proceedings before the EPO are terminated." (Guidelines for Examination in the EPO, section a-iii, 5.6 ).
- Article 64(3) EPC
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(...) the Unified Patent Court will be a court common to the Contracting Member States, thus situated within the judicial system of the European Union, with exclusive competence on their territories for European patents with unitary effect and European patents designating one or more Member States party to this Agreement
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