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On December 11, 2012, the European Parliament approved a set of
three proposals to create (1) a "unitary" patent valid
across 25 EU member states, (2) a simplified language regime for EU
patents, and (3) a unified patent court for hearing infringement
disputes. This agreement comes after more than 30 years of
negotiation. Although many details are unclear and much could
change during implementation of the agreement, proponents of the
new system believe it will bring about a reduction in
administrative costs of obtaining an EU patent. Further, the
agreement must still receive certain ratifications in order to go
into effect (the earliest date being January 1, 2014).
Unitary Patent
According to the current proposal, applications for a unitary EU
patent will be examined by the European Patent Office (EPO) in
Munich, which also will be responsible for maintaining the register
of unitary patents and collecting annual renewal fees. Once
granted, the unitary patent will provide automatic protection in 25
of the EU's 27 member states (excluding Spain and Italy). The
one-step application process for a unitary patent would eliminate
the need to seek separate validation in each and every country
where protection is sought and could result in significant cost
savings to applicants depending on the number of designated EU
countries.
Provided this proposal goes into effect, any applicant from any
country will be allowed to apply for a unitary EU patent, beginning
on January 1, 2014 or the date the agreement on a Unified Patent
Court (UPC) enters into force, whichever is later.
Fewer Translations
According to the current proposal, unitary patent applications,
including the specification, must be submitted in English, French,
or German. Applications in any other language must be accompanied
by a translation into one of those three languages. After the
unitary patent is granted, no further translations will be
required. In addition, reimbursement for the cost of translating
the application into any of the three official languages will be
available for EU-based small- and medium-sized enterprises,
non-profit organizations, universities, and public research
organizations.
Unified Patent Court
According to the current proposal, a specialized UPC will have
exclusive jurisdiction over infringement and validity questions
involving unitary EU patents, including actions against the
decisions of the EPO in refusing a patent. First instance actions
will be heard by specialized patent judges in UPC's first
instance court, seated in Paris, with specialized divisions in
London for chemical cases and in Munich for mechanical cases. All
appeals will be heard in the UPC's court of appeals in
Luxembourg.
Provided this proposal goes into effect, a UPC will enter into
force on the later of January 1, 2014 or when 13 contracting states
(which must include the United Kingdom, France, and Germany) ratify
it. Thus, the United Kingdom, France, and Germany have effective
veto power on the change.
Proponents of the change applaud it as a necessary streamlining
of the overly complex and costly patent system in Europe, giving a
needed boost to Europe's technology SMEs and in turn the
struggling European economy. Critics question the wisdom of
allowing the European Court of Justice to rule on substantial
patent law issues, and whether enough qualified judges will be
found for trial courts, given that the vast majority of patent
litigation in Europe currently takes place in Germany, England, and
France. Careful study and continued monitoring of the
implementation and ratification process will reveal the extent to
which this new law delivers the benefits touted by its proponents
or falls victim to the weaknesses identified by critics.
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