The Unitary Patent - Is An End In Sight?

Ever since then, there have been attempts to bring in a ‘Community Patent’ but these have floundered, generally on issues relating to language, cost and the judicial system. For the last two years, there has been a new impetus to create a ‘Unitary Patent‘ for all EU member states (except Spain and Italy who have refused to participate so far and indeed have challenged the basis of it before the European Court).

The last couple of months have seen even more activity but increased confusion as to whether it will come into force and what effect it might have. At the end of June the ’Competitiveness Council’ of the EU agreed a compromise solution of having the principal court (the ’Central Division’) in Paris but with specialist clusters in London (for, essentially, chemistry and life sciences litigation) and Munich (for, essentially, mechanical engineering). In addition to this court, there will also be regional courts involving more than one member state and local courts for one country. The council also suggested the deletion of one of the more controversial proposals (that of allowing the European Court to decide on infringement appeals) and also proposed preventing EU domiciled defendants from seeking to transfer cases from a regional court to the Central Division.

Just a week later, the European Parliament effectively rejected these decisions, but did not make a final decision and instead referred the matter back to the EU’s Legal Affairs Committee. How long it may remain there is uncertain.

The Unitary Patent has aroused very strong feelings and not just from patent lawyers but also from an increasing number of patentees – they feel the legislation is being railroaded through in a non-transparent way and without an understanding of the consequences. There are real concerns that the main users of the patent system will simply not use it and will revert to national patents – this defeats one of the principal objectives. Out of the long list of complaints, the following are some of the more important ones:

• There is still no idea of its cost to users or whether it would be cheaper than the ‘norm’ of only validating a European patent in 3 or 4 countries.
• The process has been done largely without proper public scrutiny, with key documents being kept secret by the EU Commission.
• The overly patentee-friendly (to UK eyes) German principle of bifurcation of infringement and validity will remain, leading (in practice) to different procedures around the EU.
• The likely cost of the whole system (including the training of judges) remains a secret. If filing fees are cheap, might litigation costs be high to recoup the costs?
• SMEs do not really want or need a patent covering 25 countries, yet that might be what they get as well as the risk of being sued in a foreign country.
• The current procedural rules governing litigation are not agreed and are still being discussed by a panel of experts and even issues of substantive law (eg, as to accessory liability) have not been dealt with.
• The proposal to allow the European Court to hear appeals on the scope of protection and infringement will lead to long delays and will undermine the notion of having to have specialist judges decide patent issues.

These (and other) issues, whilst not insurmountable, are important to the users of the patent system and it may (or perhaps should) be more time before any agreement is reached. If the major issues are not dealt with and the proposal is pushed through, there remains the real risk that, like the CPC, it will never be agreed and/or that users will simply not use it. Watch this space.