A Europe-Wide Patent – Available Soon?

November 17, 2011

It has long been a goal of the European Union to realise a unitary patent system that would provide Europe wide protection for an invention by way of a single, unitary patent. A number of attempts have been made to reach agreement across Europe regarding the implementation of a unitary patent system, but to date none have been successful. However, there have been developments in recent months indicating that a European unitary patent system may become a reality in the not too distant future.

Under current patent systems, in Europe it is possible to file a single European patent application for an invention, which is examined by the European Patent Office (EPO). However, when a European patent application is granted it is then necessary to validate the application in the countries of interest. That is, the granted European patent application becomes a number of national patents in the countries chosen by the owner of the patent. Renewal fees must be paid with respect to each national patent, and actions such as enforcement of the patents must be done separately in each national court. This can be costly. A potential solution to these problems would be to have a single patent that was valid across the whole of Europe, a unitary patent, and an accompanying single court system for enforcing such unitary patents. Since the 1970s there have been a number of attempts to establish a European unitary patent system, but none have been successful. In the early 2000s significant progress towards a unitary patent was made, however agreement on the details of the system such as translation requirements, could not be reached. More recently, in 2009 it looked like a unitary patent was going to be achieved as agreement was reached on a package covering the key elements of the unitary patent and a single court system. The proposal was for the European Union to become a member of the European Patent Convention (EPC) such that patents granted by the EPO could be unitary in nature. However, translation requirements were not part of the agreement. Requirements for translation in the proposed system were put forward but again no agreement could be reached. In addition the European Court of Justice delivered an opinion indicating that the proposed single court system was not compatible with the treaty on European Union and the treaty on the functioning of the European Union. Although some agreement had been reached, the efforts towards a unitary patent failed. More recently, those efforts have been renewed using ‘enhanced cooperation’ in the European Union which allows some member states to proceed with a proposal without the involvement of the rest. Currently 25 of the 27 EU states are involved in the proposal and regulations relating to the unitary patent and the translation requirements have been drafted. The proposal remains for the group of 25 states involved to become a member of the EPC such that patents granted by the EPO can have unitary effect across all those 25 states. Currently Spain and Italy are the two states not involved in the enhanced cooperation proposal. The future is looking relatively bright for the unitary patent and the European Commission hopes that the first unitary patents will be granted in 2013. However, the details of the court system must still be worked out, which may prove to be a further stumbling block. Please contact Ian Whiley for more details [email protected] or your usual contact at Swindell & Pearson Ltd.

Swindell & Pearson has been helping businesses and individuals protect and defend their ideas, innovations and brands for over 130 years. With its head office in Derby, the firm also has offices in Stoke, Wolverhampton, Stafford, Sheffield and Burton. To find out how Swindell & Pearson can help you with any intellectual property requirements please get in touch via [email protected] or by telephone on 01332 367 051.