After decades of protracted discussions and negotiations, Europe's patent law and patent court system are about to undergo their most radical shake-up since the foundation of the European Patent Organisation.
In December 2012 the Council and Parliament of the European Union adopted the two regulations which form the legal basis for the newly established unitary patents and the language regime thereof. At the same time, the legislative process continued at the international level with the aim of finalising an agreement on a unified European patent court system. Wh a t i s k n own a s the "Agreement on a Unified Patent Court" (or "AUPC") is intended to be signed on 18.02.2013 by the 25 participating Member States (all EU countries except Italy and Spain) and then ratified by the parliaments; the latest version of this agreement (Document 16351/12 of 11.01.2013) can be accessed via the EPO webpage.
The regulations on the unitary patent and the AUPC will enter into force only once at least 13 of the 25 contracting Member States, which must include Germany, France and the United Kingdom, have ratified the AUPC, yet on 01.01.2014 at the earliest.The European patent with unitary effect ("unitary patent") is applied for in the same manner as a European patent; however, if the publication date of the granted patent falls after the AUPC enters into force, the patent proprietor can request unitary effect for all 25 countries from the EPO. The request must be submitted within one month following publication of the decision of grant.
Once a transition period of at least seven and at most 14 years has elapsed, both "conventional" European patents and the new unitary patents will be subject to the exclusive jurisdiction of the newly established European Patent Court. This new court shall consist of both local and regional divisions and a central division. Provisionally, four local divisions are to be set up in Germany, replicating the traditional places of patent court jurisdiction (Düsseldorf, Mannheim, Hamburg and Munich). The central division will have its main seat in Paris, with sections in London (pharmaceuticals) and Munich (mechanical engineering). Competence for infringement proceedings shall be determined in accordance with Council Regulation no. 44/2001. In particular it shall remain the case that patent proprietors may bring an action against potential infringers at both the seat of said infringers and the place of commi s s ion. The cent ral di v i s ion has competence in isolated actions for revocation and for a declaratory judgement to establish the non-existence of a right. In the event of counter action for revocation, the local or regional division before which the case was first brought may refer the lawsuit to the division or continue the proceedings.
The Court of Appeal will have its seat in Luxembourg.
Important matters, in particular the cost of renewal fees and the recourse to the court system, have not yet been settled.
Preu Bohlig & Partner is now offering advice to clients and patent attorneys on all matters concerning the new court system.
Back in November 2012 Partner Dr Stephan Gruber delivered a lecture to the Bavarian Association of Patent Attorneys on the unitary patent. Andreas Haberl and Konstantin Schallmoser provide a comprehensive and in-depth insight into the new system in the current issue of GRUR Prax. (issue 1/2013), setting out in detail the court system, procedural law, language regime, transitional arrangements and outstanding issues.
In Spring 2013 Preu Bohlig & Partner will publish a special edition of the client newsletter in German, English and French. This will detail the new system and also highlight the measures which patent proprietors and applicants should and must already be taking. At the same time, Preu Bohlig & Partner's Düsseldorf and Munich offices will provide information on the new court system at the successful Preu Breakfast.
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.