Draft regulations relating to unitary patents were published recently. As the implementing body, the European Patent Office is responsible for registering unitary patents, based on these (draft) regulations. This concerns further elaboration of the EU directives which were accepted in the spring of 2013 and represents another step towards a European patent with unitary effect.
The regulations will be amended on the basis of suggestions made by the Member States. These amended regulations will be discussed in the Select Committee of the Administrative Council of the European Patent Office on 18 September 2013. This Select Committee represents the Member States which are taking part in unitary patent protection.
The draft regulations include provisions for various procedures concerning the registration of a unitary patent. They also address the annual fees, revocation and lapse, details of the register for unitary patent protection and restoration of a patent in the event of a deadline being missed. They furthermore establish that several specific articles and regulations from the European Patent Convention also apply to unitary patents.
The concept of 'licence by right' is new to the Netherlands and is developed further in the draft regulations. This principle already exists in the United Kingdom. A holder of a European patent with unitary effect can publicly offer a licence through the patent register to anyone who pays a reasonable fee. By making this offer the patent holder receives a discount on the annual fee. This makes the patent system cheaper for businesses and private individuals who do not need exclusive protection. For most businesses, however, this discount will not be very relevant, as such an offer weakens their negotiating position. The unconditional offer of a licence considerably diminishes the ability to impose an infringement injunction.
According to the draft regulations it will not be possible to partially revoke a European patent with unitary effect. This would mean that partial revocation could only be achieved by using the provision in Art. 105a EPC. Consequently, partial revocation also applies to any parallel national patents in non-participating countries, creating less flexibility compared with nationally validated patents.
The regulations also refer to 're-establishment of rights'. This regulation applies, if the owner of a patent misses a European Patent Office deadline, either by force majeure or by mistake. This regulation is similar to that of the European Patent Convention and national patent legislation, except that the possibilities are more limited compared with validation of a European patent in the Netherlands. On the other hand, one central restoration procedure is less complex and less expensive than a series of national procedures.
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