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Agreement on European unitary patent?

On Friday 29 June, as a result of the EU summit, a great breakthrough was achieved in respect of the European patent. The prime ministers of Germany, France and the United Kingdom have agreed that there will be a patent that is directly valid in the European Union. There will also be a Patent Court for handling infringement conflicts. This court will have its main seat in Paris, with branches in London and Munich. It seems that this will bring an end to nearly fourty years of negotiations about this issue.

Ever since the seventies, the European legislator has fostered the ambition of realizing a European unitary patent that – unlike the present European patent – has direct effect in all European countries. This also involves the protective scope of the patent being governed by a uniform material law. An important argument in favor of the unitary patent is the intended reduction of patent costs, which costs in Europe are said to differ significantly from the cost in, particularly, the US and China. Since the end of last year, a tremendous acceleration has taken place on this topic.

The measures only relate to countries that are member of the European Union, so that countries that are party to the European Patent Convention but are not a member of the European Union, such as Norway, Switzerland and Turkey, drop out.

Traditionally, the different language regimes of the European countries have constituted a serious obstacle. Meanwhile, however, 27 out of 29 EU countries have declared to be ready to compromise on this issue. Presently, only Italy and Spain have not given their support to the initiatives. This situation may change in view of the present political climate.

Meanwhile, a solution was found to the presently most important issue to Europe, viz. where the seat of the patent court had to be established. Candidate cities were Paris, London and Munich. In addition, Milan, The Hague and Brussels were mentioned. This involved a political decision prone to major interests and prestige.

In all countries, in particular those with a established patent culture, the present developments have been received with mixed reactions from users of the system – industry, SME, attorneys at law and patent attorneys.

Many objections were raised to the new structure. Complaints that are often heard are that none of the parties involved desired this harmonization and that the path to the court will become much more expensive and complex than is presently the case. This is expressed most clearly in a parliamentary review that was conducted on this issue in the UK.

One of the remarkable aspects of the consensus now reached is that the influence of the ultimate judicial power, the European Court of Justice, will be limited in cases before the Patent Court. The European Parliament has responded to this in critical terms and at this point, it is still unclear whether this will be accepted easily. This may actually impede a fast implementation of the unitary patent. A further remarkable aspect is that the branches will be specialized, with London covering life sciences and pharmaceuticals.

For the current status of the unitary patent and the UPC, please refer to our Dossier.