History and developments

13 April 2011
The European Commission presents two draft regulations on the unitary patent: one on enhanced co-operation on unitary patent protection and another on the translation arrangements for such protection. 

10 March 2011
"Enhanced co‑operation" authorised by the EU Council on the basis of a proposal from the European Commission, allowing some EU member states to move forward immediately, with others able to opt in at a later stage. This EU Council decision established a basis for the participating member states to adopt the necessary EU regulations on the unitary patent and on the translation arrangements involved.

8 March 2011
The Court of Justice of the EU (CJEU) issues opinion 1/09 finding that the proposed EEUPC agreement was not compatible with EU law.

10 December 2010
An EU Competitiveness Council meeting confirms that there are insurmountable difficulties rendering a decision requiring unanimity impossible for the foreseeable future.

10 November 2010
An EU Competitiveness Council meeting notes that there is no unanimity to go ahead with the proposed Council regulation on the translation arrangements for the EU patent.

1 July 2010
The European Commission presents a proposal for a Council regulation on the translation arrangements for the EU patent, as well as an impact assessment including an executive summary.

4 December 2009
EU ministers reach agreement on a number of key elements of the future EU patent system, including:

• a draft regulation on the EU patent (general approach), and
• a set of conclusions on
  • the features of the envisaged unified patent litigation system
  • the arrangements for renewal fees and their distribution
  • a system of enhanced partnership between the EPO and the central industrial property offices of EU member states.

(Formerly known as the Community patent, the EU patent got its new name with the entry into force of the Lisbon Treaty, under which the European Union replaced and succeeded the European Community. The European and Community Patent Court (ECPC) was renamed the European and European Union Patents Court (EEUPC) for the same reason.)

June 2009
The EU Council asks the CJEU for an opinion on the compatibility with the EU Treaties of a draft agreement on a European and EU Patents Court (EEUPC) which would establish a patent court system with exclusive jurisdiction for infringement and validity issues relating to both EU and traditional European patents. The agreement would be an international treaty including EU member states and other EPC contracting states which are not members of the EU. 

Draft regulation on the EU patent (general approach)
The draft regulation relates mainly to post-grant issues, including the effects of the EU patent, compulsory licences and lapse or invalidity of the patent, but excluding translation arrangements. As a next step, the European Parliament will debate the regulation via the co-decision procedure (now known under the Lisbon Treaty as the "ordinary legislative procedure").

The basic idea is for the EU to accede to the European Patent Convention (EPC) and for the EPO to grant EU patents, which would be European patents with unitary effect in the EU.

Revision of the EPC
Implementing this system will mean revising the EPC to allow EU accession and to regulate issues such as the EU's voting rights, the establishment of a select committee of the Administrative Council, and parallel designation of both the EU and its member states in a European patent application. A revision conference will have to be held, leading to a Revision Act which will have to be ratified by all the EPC contracting states (38 at present).

Translation arrangements
The Lisbon Treaty (Article 118 TFEU) has provided a new and specific legal basis for the creation of unitary IPRs within the European Union. Any decision on the language regime still requires unanimity (plus consultation of the European Parliament), but all the other aspects can be decided upon by a qualified majority under the ordinary co-decision procedure. In view of this legal change, the EU Council conclusions now propose that the translation arrangements for the future EU patent be dealt with in a separate regulation. The aim of this is obviously to focus future discussions on the language regime. According to the EU Council conclusions, the EU patent regulation would come into force together with the separate regulation on the translation arrangements for the EU. 

Renewal fees
In the conclusions, the EU Council agreed that once the EU patent regulation enters into force, a select committee of the Administrative Council should fix both the level and distribution key of the renewal fees. The EPO would keep 50% of renewal-fee income.

Enhanced partnership
Here the conclusions suggest a concept of enhanced partnership enabling the Office to make regular use, where appropriate, of the results of patent searches carried out by EPO member-state national offices on national filings whose priority is claimed in a subsequent European patent application, in accordance with the established utilisation scheme of the European Patent Network (EPN). It would be based on a European Standard for Searches (ESS) setting down quality-assurance criteria based on the agreed quality systems of the EPN. The ESS would include standards not only on searches but also on training, tools, feedback and assessment.

24 March 2009
The European Commission adopts a recommendation to the Council that will provide the Commission with directives to negotiate an agreement creating a unified patent litigation system. The court structure would have jurisdiction over infringement and validity of existing European and future EU patents.

The unified system is to be created by an agreement to be concluded in accordance with the procedure foreseen by Article 218 TFEU, involving the European Union, its member states, and those contracting states to the EPC which are not member states of the EU

29 March 2007
The Commission adopts a communication entitled "Enhancing the patent system in Europe". This relaunches the patent reform debate in the Council, in particular with regard to the creation of a unified patent litigation system, now referred to as the European and EU Patents Court (EEUPC). This system will have exclusive competence for infringement and revocation litigation on both European and EU patents.

12 July 2006
The European Commission hosts an open hearing in Brussels, with the aim of initiating phase 2 of the consultation process, at the end of which the Commission presents its views on future patent policy in Europe.

In preparation for the hearing, the Commission publishes the preliminary findings of its consultation exercise. In addition, a short report on the hearing is made available together with most of the speeches and presentations, including one by Professor Alain Pompidou, former President of the EPO. 

January 2006
The Commission launches a public consultation on how patent policy can best take account of stakeholder needs. It focuses on three main issues:

• the Community patent
• how the existing European patent system could be improved in the near future
• possible areas for harmonisation.

The EPO's reply to the consultation questionnaire is published. 

2003-2005
The EU Council, following its "common political approach", fails on a number of occasions to reach the required unanimous agreement on all aspects of the draft regulation, in particular the translation arrangements. Negotiations stall without a final agreement.

1 August 2000
The Commission proposes the creation of a Community patent by way of an EC regulation.