What is the unitary patent?
The unitary patent - or "European patent with unitary effect" - is a European patent, granted by the EPO under the rules and procedures of the European Patent Convention, to which, upon request of the patent proprietor, unitary effect is given for the territory of the 25 Member States participating in the unitary patent scheme.
The unitary patent will co-exist with national patents and with classical European patents. Patent proprietors will in future be able to choose between various combinations of classical European patents and unitary patents, for example:
- a unitary patent for the 25 Member States of the European Union which participate in the unitary patent scheme;
- a classical European patent taking effect in one or more EPC Contracting States which do not participate in the scheme, such as Spain, Italy, Switzerland, Turkey, Norway, Iceland, etc.
Which tasks will be entrusted to the EPO by the 25 Member States participating in the unitary patent?
The Regulation on the unitary patent provides that the participating Member States will entrust the following tasks to the EPO:
- Receiving and examining requests for unitary effect
- Registering unitary effect
- Publishing translations during the transitional period
- Setting up and maintaining a new "Register for unitary patent protection"
- containing entries on assignment, transfer, lapse, licensing, limitation or revocation of unitary patents
- Collecting annual fees for unitary patents
- Distributing part of the annual fees to the participating Member States
- Administering a compensation scheme
- reimbursement of translation costs (up to a ceiling) for certain applicants filing applications in an official language of the European Union other than English, French or German
These new tasks consist in straightforward ex parte registration tasks carried out by the EPO on the basis of the internal rules of the EPO. Decisions of the EPO regarding unitary patent protection may be appealed to the Unified Patent Court.
What are the translation arrangements for the new unitary patent?
After grant of the European patent, there will in future be no translation requirement for unitary patents - once the transitional period (of up to 12 years) has expired.
Patent translate - the EPO's machine translation programme developed together with Google - offers free online access, for information purposes, to automatic machine translations of any European patent application and patent. By the end of 2014, machine translation of patents will be available for the languages of the 38 Member States of the European Patent Organisation, including the European Union's 27 Member States. Fourteen European languages are already covered.
Only in case of dispute, at the request of a court or an alleged infringer, will the patent proprietor have to provide a full human translation into the relevant language.
Transitional measures are provided for during a period of up to 12 years, as follows:
- where the language of proceedings at the European Patent Office is French or German, the patent proprietor will have to provide a translation of the European patent into English;
- where the language of proceedings at the EPO is English, the patent proprietor will have to provide a translation of the European patent into any official language of the European Union.
Finally, a compensation scheme is provided for to reduce the costs for SMEs, natural persons, non-profit organisations, universities and public research organisations having their residence or principle place of business within a Member State of the European Union: where such applicants file applications in an official language of the European Union other than English, French or German, the costs of translating the application will be reimbursed (up to a ceiling).
What further implementation by the Member States is still required?
The 25 EU Member States participating in the unitary patent scheme will set up a "Select Committee" of the Administrative Council of the European Patent Organisation to adopt the necessary legal and financial framework.
The implementing rules will be based on the tried and tested rules and procedures under the European Patent Convention, including remedies such as further processing, restitution in integrum, additional fee in case of late payment.
What were the main legal steps towards a unitary patent so far? What steps remain?
- December 2010: Council establishes that agreement on the Community patent cannot be attained within a reasonable period by the European Union as a whole
- December 2010/January 2011: 25 Member States wishing to establish "enhanced co-operation" in the area of patents address their requests to the European Commission
- December 2010: European Commission presents proposal for a Council Decision authorising enhanced co-operation in the patent field
- March 2011: Council adopts Decision authorising enhanced co-operation
- April 2011: Commission presents proposals for two regulations implementing enhanced co-operation
- Regulation under Art.118(1) TFEU creating unitary patent protection
- Regulation under Art.118(2) TFEU on language arrangements
- June 2011: Council agrees on a general approach on the two draft regulations
- December 2011: Parliament's Legal Affairs Committee approves first reading agreement on the two regulations
- 10 December 2012: Council endorses the two regulations and the Agreement on the Unified Patent Court ("patent package")
- 11 December 2012: Vote in the European Parliament on the patent package
- 17 December 2012: signature of the 2 Regulations
- 31 December 2012: publication of the 2 Regulations in the Journal official de l'Union European L 361 of 31.12.2012
- 19 February 2013 (planned): the Agreement on the Unified patent Court open for signature
When will the "patent package" enter into force?
The two regulations enter into force on the 20th day of their publication in the Official Journal of the European Union (ie, 20.1.2013). They shall apply from 1 January 2014, or from the date of the entry into force of the Agreement on a Unified Patent Court, whichever is later.
A link is thus made to the entry into force of the Agreement on Unified Patent Court which will enter into force:
- either on 1 January 2014
- or on the first day of the 4th month after the deposit of the 13th instrument of ratification or accession (whereby France, Germany and the United Kingdom must be included among these 13 states),
- or on the first day of the 4th month after the date of entry into force of the amendments to Regulation (EC) 1215/2012 (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 20.12.2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJEU L351/1 of 20.12.2010), including any subsequent amendments) concerning its relationship with this Agreement
whichever is the latest.
In any event, the EPO will, together with the 25 Member States participating in enhanced co-operation, take all necessary steps to ensure that the EPO will be ready to carry out the tasks entrusted to it as soon as the unitary patent system becomes operational.
What are the main features of the Unified Patent Court?
- Decentralised Court of First Instance with local, regional and central divisions located in the Member States
- Common Court of Appeal
- Common Registry with local sub-registries
- Reference to the Court of Justice of the European Union (CJEU) for preliminary rulings whenever a question of Union law requires interpretation (like national courts)
- Only Member States of the European Union may become Contracting Member States to the Agreement on the Unified Patent Court
- Internationally composed panels, with legally qualified judges and technically qualified judges
- Judges appointed by Member States, on the basis of a list prepared by an independent Committee composed of patent practitioners
- Jurisdiction for both classical European patents and unitary patents
- Exclusive jurisdiction to hear i.a.
- actions for infringement of patents and of supplementary protection certificates
- counterclaims for revocation
- revocation actions
- actions for provisional and protective measures and injunctions
- actions against decisions of the EPO relating to unitary patents
- Discretion for local and regional divisions to either deal themselves with counterclaims for revocation or refer such counterclaims to the central division
- Possibility for opt-out and choice of forum during a 7-year transitional period (extendable)
- Entry into force once 13 Member States will have ratified
- Revision clause: Based on user consultation and an opinion of the Unified Patent Court, the Administrative Committee may revise the Agreement to improve the functioning of the Court
- Court fees: fixed and value-based fees
- Mandatory representation by either
- lawyers authorised to practice before national courts or
- European Patent Attorneys with appropriate qualifications
- Preliminary draft for the Unified Patent Court's Rules of Procedure under preparation
What seat arrangements have been decided for the Unified Patent Court?
At the European Council on 29 June 2012, it was agreed that
- the seat of the Court of Appeal will be in Luxembourg
- the seat of the central division of the Court of First Instance will be in Paris
- the central division will in addition have thematic clusters located in London and Munich
- the Training Centre for judges will be located in Budapest
- the Patent Arbitration and Mediation Centre will be located in Lisbon and Ljubljana.