Will there be a unitary EU patent?

Those seeking to obtain patent protection in Europe may already be aware of the hype on creating a unitary EU patent.  Given the added time and expense of the current system, it’s no wonder everyone’s so excited.  Whether this is likely to happen anytime soon, though, is another story.

Many patent-seekers are confused by the existing ‘European patent’ and the talks of a unified ‘EU patent’. Under the European Patent Convention of 1973, a single application in a single language (English, German or French) is filed with the European Patent Office. However, the EPC was a voluntary treaty, and not all EU member states recognize a European patent. For non-designated states, a separate national application in the nation’s accepted language must be filed with the nation’s patent office. Further, once the EPO approves a European patent, it still must be validated by each individual country that was chosen in the application. On the other hand, a unitary EU patent, applicable to each member state of the European Union, not only streamlines European patent procedures even further (as well as reduces cost), but also reflects the unified political and economic principles under which the EU operates.

There are two main obstacles to creating a unified EU patent, the first of which is language. Currently there are 23 official EU languages. There is the possibility of following the EPO in reducing 23 languages to three, but countries like Spain and Italy have already voiced their opposition to this approach.

The other downside of the European patent and a major obstacle for a unified EU patent is enforceability. Even though European patents consist of a single application for all participating states, patent enforcement and revocation is still the responsibility of each individual country. This means that for a single application to be enforced it must be broken down into each applicable national patent and each national patent office has exclusive jurisdiction over enforceability. Individual translation and court costs alone make seeking patent protection in Europe far less competitive than in Japan, China or the US, as well as far less achievable by smaller companies that cannot afford the expense. Also, dragging patent enforcement issues through individual court systems leads to separate and sometimes conflicting interpretations. Patent holders who must enforce their patent rights are still frustrated by the expense, delay and often inconsistent outcomes of country-by-country enforcement of the same European Patent. So, not only does there need to be a unified EU patent, but a unified court system for enforceability, as well.

This movement hit a major roadblock in March 2011 following a ruling by the European Court of Justice (ECJ). Basically, the ECJ has rejected the idea of a unitary patent court system that does not involve the ECJ itself, arguing that it is not compatible with EU law by granting an unofficial governing body the power to interpret and apply EU law. However, with its lack of patent experience and expertise, the idea of involving the ECJ as a patent court does not engender confidence in the patent community.

Without the approval of the ECJ, the possibility of a unified court system seems unlikely in the near future, and a unitary EU patent without a unitary enforcing system does little to solve the deficiencies in the current system.   It has been over three decades since the EU made any real progress in the patent application and enforcement arena. Further steps towards unification of the process are long overdue and still remain to be seen.

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