Arrival of the unitary patent even closer

On the 5th of May one of the last hurdles of the unitary patent was overcome as the objections of Spain were rejected by the Court of Justice of the European Union. As Spain has no more legal steps to take, this means that the Unified Patent Court can make the last moves in the realisation of this European system. It is expected that the first unitary patents will be assigned late 2016 or early 2017.

Since 2010 Europe has been working hard on one of the largest changes in European patent law of the past decennia, the introduction of the unitary patent. While the current system requires validation of a patent in individual member states, the unitary patent makes it possible to validate a patent in all participating member states at once and regulate it through a central legal system. The hope is that this system will make patent procedure less unpredictable, cheaper and faster. The envisioned system offers advantages but also disadvantages in terms of costs, efficiency and protection of the patent.

What changes exactly?

Currently a European patent, after it has been granted, has to be separately validated in all desired member states. This entails additional costs, especially the translation costs made to have the patent validated within a specific country (The EU knows 24 official languages in total). After a patent has been validated, to keep the invention protected, a maintenance fee has to be paid. Within the current system also this has to be paid in each individual country. Finally, the addressing of an alleged infringement has to be litigated separately in each country the patent has been validated.

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With the unitary patent the patent application is still submitted at the European Patent Office (EPO). Only now, after it has been granted, the patent is immediately valid in all participating member states. For those countries not participating in the unitary patent, such as Spain, separate validation remains necessary. A central legal system, the Unified Patent Court, will be founded to exclusively focus on unitary patents and European patent law. Disputes would no longer have to be resolved within national courts. However, this also means that, when the Unified Patent Court concludes that the rights of a patent are invalid, this is directly applicable to all participating member states. With one ruling the entire validity of a patent could be lost in almost all of Europe.

Costs

The costs in the preliminary stages remain the same under the unitary patent. Cost savings are mainly in the translations costs after validation by the EPO. After the patent has been granted it no longer needs to be translated. The specific maintenance fee within the new system still has to be determined, but will most probably be equal to the current costs of maintaining a patent within eight countries. When you would like your patent to be validated in over eight countries, this option would be less expensive.

As of when is this possible?

At the earliest it will be possible end of 2016 to obtain a unitary patent. Almost all member states already signed for participating in 2013. Now that Spain’s objections have been rejected, what remains is the ratification of the Unified Patent Court. When 13 countries, amongst which at least Germany, French and England, have ratified the treaty it can go into effect within these countries. Of these three, only France has ratified the treaty so far. Additionally Austria, Denmark, Malta, Belgium, Sweden and Luxembourg have ratified the treaty.

The unitary patent may seem far ahead, but because of the drastic changes it is important to already be aware of it. The choice between the old and new system is complicated and very dependent on your specific situation. For questions or personal advice, do not hesitate to contact DOGIO Patents.