Plans for a single unitary patenting system covering the EU may finally be coming to fruition, despite tumultuous attempts to adopt it into European law.
The advantages of a unitary patenting system will be that applicants would be able to protect their intellectual property across a number of European member states without undertaking the costly full granting procedure in each individual state, and one regular renewal fee would be payable to one single central entity, with the fee expected to be lower that the equivalent cost of renewing in every member state individually.
In December 2012 it seemed as though the EU was moving closer to the unitary patenting system with bills on Enhanced Cooperation in the Area of the Creation of Unitary Patent Protection and Applicable Translation Arrangements being approved. Progress slow and it is currently thought that the unitary patenting system will be introduced into effect next year. For this to happen, 13 of the 28 member states must ratify the legislation, including France, Germany and the UK. Currently, just 4 countries have ratified, one of which is France.
When in force, unitary patents will begin to be presided over by centralised courts in France, Germany and the UK depending on the type or application. Munich, for example, will deal with mechanical patents and London pharmaceutical and life science patents. How these changes will affect existing holders of EU patents is still unclear. It is indicated that there will be a transitional period for existing patent holders where patents will be litigated individually by a Unified Patent Office representing the EU. It is speculated that this could lead to some problems for existing European patent holders during this litigation change.
Another issue is that member states are ever-changing and evolving, not to mention that in the near future Scotland may be separated from the rest of the UK making patent applications to the UK for Scottish businesses much trickier. On the face of it, it appears that Scottish patent applications would have to be made to individual member states as they currently are and not a unitary body as draft legislature made to the upcoming Intellectual Property Bill did not include a Scottish court as a localised part of the unitary patenting scheme. Even existing EU member states will have the option to opt-out of signing up to the unitary system. So a granted unitary patent may end up not covering all of the EU, but instead just part of it if some member states decide not to join.
When the system is established it will unlikely be without teething issues (as most new legal systems are). It takes time for a judiciary to establish how and why patents should be granted, what reasonable timelines for approval or decline are and how best to process applications. Industry insiders even suspect that the very firms who were integral in campaigning for the new system and were expected to be heavy users may shy away from the new patent types. Pharmaceutical firms hold patents across many geographies and would benefit from reducing their multi-country fees to a unitary level. However, many individual patents are more legally robust: it is harder to overturn each national patent and so easier to maintain at least partial European protection than it would be if a unitary patent was overturned. Will the departure of the scheme’s biggest supporters mean that the unitary system does not receive the attention it will require after launch?
All of this can put patent applicants into troubled waters. In principle, the idea of a more cost-effective patent application and renewal system will come as good news to most holders, but a transition into a unitary patenting system will likely cause some early chaos.
For the latest IP law news, debates and discussions follow us on Twitter @renewalsdesk
July 9th 2014