The Unitary Patent and the associated Unified Patent Court (UPC) will be launched at the beginning of 2017. Patent Attorney Koen Bijvank, leader of the taskforce that was set up at V.O. especially for this, explains the significance of the developments. ‘If your patent is not valid according to the UPC, it will be gone in all participating countries in one fell swoop.’
Why a Unitary Patent?
‘The whole patent business is international. Inventors want to protect their inventions across borders too. That’s why there have been calls to align legislation for a long time already. Amongst other things, this led to the arrival of the European patent system in the 1970s, whereby you are currently allowed to apply for a patent in 38 countries at the same time. This type of patent from the European Patent Office is highly regarded. Applications for patents are rarely submitted nationally these days.’
But is the current system not flawed?
‘That’s right, because after obtaining a European patent, it’s then split into a bundle of national patents. This means that enforcement is carried out on a country-by-country basis. As a result, in the event of an infringement on your patent, for instance, you have to go to a Dutch or Danish court in order to obtain justice. It can also be the case that courts in different countries form different judgments. In order to do something about this, the Unitary Patent and the UPC have been established. Of course, this fits in with the European philosophy of a common market. You ought to be able to protect your invention in one go and to enforce the law in a single procedure.’
How will it work?
‘With the Unitary Patent, your patent will soon be in force across the EU. And importantly, there will therefore be a single court where you can enforce the law. Unfortunately, various exceptions have already been made. Spain won’t be taking part, for instance. As a result, the ultimate aim of making everything as simple as possible hasn’t been achieved. Things will perhaps become even more complicated.’
‘You’re not obliged to opt for the Unitary Patent. The current European ‘bundle of patents’ will continue to exist. You can choose to use either of the two systems. And that’s also partly to do with costs. For every patent, you pay a maintenance fee. With the bundle of patents, you only pay for the countries designated. But with the Unitary Patent, you pay one fee for all participating countries. This fee is based on the sum of four important countries. In that case, companies that only require protection in France, Germany and England would rather choose the cheaper solution of a bundle of patents.’
‘During a transition period of at least seven years, you can decide which court is responsible for your bundle of patents. If you, as the holder of a European patent, submit a so-called opt-out to the UPC for that patent, the UPC will not have the power to rule on that patent. Companies, especially those from the pharmaceutical industry, insisted on this. This choice does not exist for the Unitary Patent. The UPC will always have jurisdiction for that.’
What do you have to do as a company?
‘When the system comes into force, which is highly likely to be the start of 2017, you’ll have to decide whether you want a Unitary Patent or a bundle of patents. This decision has to be made within a month after the patent has been granted. However, before then you should start to consider registering an opt-out for all existing European patents in your portfolio. There will be a sunrise period in which opt-outs can be registered before the system enters into force. Important question: do you object to the new European court ruling on your patent? If the patent is then rejected, it will be gone in all participating countries in one fell swoop. For a strong patent, this can be the ideal solution. But for a vulnerable patent, it’s perhaps less wise.’
‘There are going to be lots of changes for our clients. That’s why we set up the taskforce,’ Koen Bijvank explains. ‘We’re combining all of our expertise, which we’ll then use to proactively advise our clients about what they should or shouldn’t do. This includes information about opt-out options, for instance. The team will definitely be in touch in the near future.’