At long last, the European Patent Office (EPO) has launched the Unitary Patent system. This allows patent applicants to apply for a single patent that will be valid in all 17 European countries that have joined the system so far.
We wrote about this all the way back in 2013, noting that the Unitary Patent system had been in development since the 1960s. Ten years ago, we thought that the new system might be in place by 2015.
According to the EPO,
The step marks the single most important development in the European patent system in the last fifty years since the signing of the European Patent Convention on 5 October 1973…
Under the new system, patents are subject to a single renewal fee in a single currency. Disputes can be litigated under a single legal system before the new Unified Patent Court (UPC).
The UPC will now serve as the central judiciary for patent litigation in Europe not only for Unitary Patents but for “regular” European patents.
As the EPO notes,
This marks a significant improvement to the present situation where European patents have been the subject of litigation in parallel proceedings before national courts, rendering legal action complex and costly for all parties. In contrast, the UPC‘s jurisprudence will generate a harmonised body of case law in Europe that will enhance the legal certainty and transparency of the patent system, benefitting both innovators and the broader public.
The UPC is headquartered in Paris with a section in Munich and local and regional divisions in other EU member states. The Court of Appeal for the UPC is in Luxembourg. The UPC also has patent mediation and arbitration centers in Ljubljana and Lisbon.
The new system replaces the current system where rights holders must deal with a multitude of different national IP authorities in Europe, each with their own procedures and languages. To cover all of Europe would previously require 39 separate national patents.
The benefits of the new system are expected to be “cost reductions, streamlined procedures, increased transparency, and enhanced legal certainty.”
According to the EPO,
Patent holders will need to pay a fraction of the current costs – EUR 5000 over ten years, compared to almost EUR 30 000 at present – to maintain their patent in the 25 EU member states that have participated in the co-operation for the creation of the new system.
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden have joined the Unitary Patent system so far, with additional EU member states expected to join in the future. The current members represent almost 80% of the entire EU’s GDP.
Seven countries have signed up but are yet to ratify the deal and three (Poland, Spain, and Croatia) have opted out.
As Politico notes,
…while all active European patents were due to be automatically transferred to the new system, for the past three months companies have been exercising their right to opt out of the new system and stick with the status quo.
At least 417,000 patents have been opted out so far. According to Politico,
many firms opting out of the unitary patent system are pharmaceutical companies, whose business revolves around ferociously defending their intellectual property.
According to Sergio Napolitano, general counsel at Medicines for Europe, the generics lobby, sticking to the old national patent system “allows you strategically to better defend your patents” and “is especially to the detriment of generic companies because they have to litigate country by country.”
Companies that opt into the new patent system early are more likely to be able to influence the development of case law for the new unitary patents, according to an EU IP lawyer.
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