The establishment of the Unitary Patent system, in development since the 1960’s, will now result in a single granting system and a single specialist court for many countries in Europe. But likely not before 2015. Nevertheless, those filing patent applications now will have the opportunity to request that their patent fall within Unitary Patent system, which will then apply retroactively once the system comes into force.
Under the current system in Europe, a patentee can apply for a patent at the centralized European Patent Office (EPO) and in one of three official languages of the EPO: French, German or English. Although there are 27 countries in the European Union (EU) 38 countries in the region have signed onto the existing European Patent Convention.
Once you have made it through the current EPO system you are required to translate at least the claims, at a cost to client, into the other two official languages. In addition, when you choose to have your patent recognized in any one of the EPO subscribing countries, you are also required to pay renewal fees to each national patent office where you have applied to gain a national patent, as well as translation fees, (when necessary) to translate the claims, and in some jurisdictions, the claims and specifications, into the specific language of that country. Overall, gaining an EPO patent in a number of European countries can be an expensive proposition.
Further adding to the costs: If you want to enforce your patent against an infringer, you have to go to each country where you want to enforce your patent, resulting in significant costs, forum shopping, translation fees, as well as inconsistent decisions between the courts of the different countries.
In contrast, the new Unitary Patent system aims for a single language requirement for prosecution and a single court for litigation. Currently the system is open to only a subset of EPO member countries, e.g., only those 27 countries actually in the EU (of which some have already decided against joining the Unitary Patent system for a number of policy and/or financial reasons). While there are still requirements to file in three languages during a 12 year transitional period, after the transition you need only file in a single language.
Under the Unitary Patent system, you will still file and prosecute at the EPO under the same legal guidelines currently in force. The distinctions between the Unitary Patent system and the current EPO system arise at the patent granting phase where you will have the option to choose where to file your patents from a list of one of many national countries, and/or the Unitary Patent system.
If you choose to file under the Unitary Patent system and once the Unitary Patent system is fully in force, you will need to file in only one of the three official languages, including during the national phases, significantly reducing costs of filing by not requiring translations. Costs will be further reduced as the new system will require only a single European wide renewal payment.
The new Unified Patent Court (UPC) will have jurisdiction over all European patents. The court will have jurisdiction as a court of first instance and as an appellate court (the patentee does retain the option to opt-out of this jurisdiction, at least until their action commences at the UPC).
The UPC will focus on written rather than oral proceedings. The UPC, will allow only limited discovery and cross examination. This will reduce court-time and costs with trials lasting two days at most before a panel of three judges. The UPC’s broad geographical jurisdiction will allow for European-wide injunctions against infringers and a centralized revocation of patents found invalid across all the countries party to the Unitary Patent system, further reducing costs and inconsistencies.
Nevertheless, given unresolved issues, it is likely that the Unitary Patent system will run in parallel with the EPO for some time to come. With two or more parallel systems there will likely be a lot of strategizing as to which prosecution and which court system to use.