Over the last few months, momentum has been gathering within the legal bodies of the EU to address the lack of a community-wide single patent. The Commission has been keen to address this matter for some time, since in their view a lack of a unitary patent across the EU creates artificial barriers in the internal market.
Accepting that some countries within the EU remain unhappy with the idea of a Community patent, several member states have relied upon a little known EU procedure entitled “enhanced cooperation”. This procedure allows member states to request that the Commission introduce legislation covering some but not all of the EU member states, when it can be argued that this will nevertheless be of benefit.
In mid February, the European Parliament gave its consent to the concept of a unitary patent that will cover all member states of the European Union except for Spain and Italy. Such a unitary patent will therefore provide protection in the following EU states:
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Sweden and United Kingdom.
The following EPC contracting states are either not party to the proposed unitary patent or are not members of the EU:
Albania, Switzerland, Croatia, Iceland, Liechtenstein, Monaco, FYR Macedonia, Norway, Serbia, San Marino, Turkey, Italy, Spain, Bosnia & Herzegovina (an EPC extension state) and Montenegro (an EPC extension state).
Following the agreement of the European Parliament, the EU Commission has now published draft Regulations implementing the proposed unitary patent. Strictly, the Regulation is in two parts, one dealing with the details of implementation and one dealing with translation issues. The text and an introductory commentary can be found here:
Whilst the Regulations are only in draft form at the moment, they do give some early clues as to the likely direction of the eventual implementation.
As expected, the unitary patent is explicitly permitted to run alongside traditional national rights, whether obtained nationally or through validation of a European patent in selected EPC member states. Furthermore of course, for coverage of those EPC members who are not in the EU (such as, for example, Norway and Switzerland), and Italy and Spain, any European patent application will need to be validated in those countries separately to have effect there.
Accordingly, protection can only be obtained in these states by obtaining a national patent or by national validation of a granted European patent.
The main benefits of the proposed unitary patent will arise where applicants wish to validate their European patent across the EU. The unitary patent will not, generally, require translation into the languages of the various member countries that will be covered, so where it is desired to pursue patent protection in multiple countries there could be significant cost savings. Moreover a single renewal fee (whose exact amount is yet to be determined but is expected to be broadly equivalent to the cost of renewing 5 separate national patents) will be payable. Thus if the European patent is to be validated in more than 5 countries, again an annual saving on annuities is to be expected.
The Regulation also explicitly requires that the patent only be enforced or revoked as a whole, although no further detail is provided regarding how this would be implemented in practice.
The one big difficulty with the proposed unitary patent is in the area of enforcement. The draft Regulations confirm unambiguously that the unitary patent should stand or fall as a single right. However, coincidentally with the developments in the implementation of a unitary patent, the European Court of Justice (ECJ) has recently ruled that a single European court set up outside of the ECJ for litigating any Europe wide patent would be contrary to EU law. It may be that the value of a unitary patent that cannot be enforced across the EU is curtailed; it remains to be seen how the legislators will press forward with the implementation of the unitary patent without any indication of how that unitary patent might be enforced or revoked.
In summary, the introduction of a single pan European patent right now seems closer than at any time since the early 1970s. For those applicants who wish to validate their European patents across multiple countries within the EU, the proposed unitary patent appears to offer potentially significant reductions in cost of validation and annual maintenance. However, the manner in which the unitary patent will be enforceable remains to be resolved.