On December 11, 2012, the European Parliament approved a
legislative package that is aimed at establishing a single unified
European patent system.
Under the current European system, an applicant files a single
patent application at the European Patent Office. If the
application is granted, the single application becomes a bundle of
national patent rights in each of the European countries selected
by the applicant. After grant, there are significant translation
fees (to translate the single application into numerous languages)
and each individual patent requires the payment of annual renewal
fees to keep it in force. It has long been recognized that the
current system is expensive and may create a hurdle to small and
medium-sized enterprises. Also, under the current system, legal
proceedings concerning the validity or infringement of any national
patents are heard in the courts of that particular country. For
example, an infringement action for a GB patent will occur in the
Patents Court or Patents County Court of England and Wales.
Under the new system, an applicant can elect to receive a single
unitary patent that covers all the contracting states, rather than
a bundle of individual national patents. This will reduce the
amount of renewal fees payable. Also, the rules will be changed to
reduce the amount (and therefore cost) of translations required -
machine translations will be permitted, in certain circumstances,
rather than human translations. Also, a new court (the
"Unified Patent Court") will be set up with a first
instance "Central Division" split between Paris, London
and Munich. A single Court of Appeal will be based in Luxembourg
and appeals from that Court will go to the Court of Justice of the
European Union. There will also be rules in place to control where
infringement proceedings can be commenced - generally speaking they
will need to be brought where the defendant is domiciled or where
the infringement is occurring. These changes will reduce the forum
shopping that is available under the current system.
The new system will come into force either on January 1, 2014,
or 4 months after thirteen states have ratified the agreement on
the Unified Patent Court (provided that the UK, France and Germany
are among them), whichever is the latest. On February 18, 2013, the
agreement on the Unified Patent Court will be open for signature.
There are a number of transitional provisions to ease applicants
into the new system and to permit, for a period of time, applicants
to continue with the current system rather than being forced to go
with the new system.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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