Why is the European unitary patent important to the countries of the European Union?

Authors: Birute Dauderiene, Patent Attorney at METIDA, Dr. Jacekas Antulis, Associated Partner, Head of Patent Division at METIDA

After more than three decades of negotiations, the European Union has finally decided on the locations of Unified European Court. The court will be split between Paris, where the central division will be based, London and Munich. As for the unified European patent protection, its system was agreed on a little bit earlier than the location question, as it was finalized last year.

On 23rd of July, 2011, the European Union Council settled on the proposed regulations of the European patent system which were approved by 25 European Union countries such as Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Estonia, Ireland, Greece, France, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Poland, Portugal, Rumania, Slovenia, Slovakia, Finland, Sweden and the UK.

The regulations suggest that when applying for a patent, one might choose between a national patent, a European patent with unitary effect, and a European patent valid only in designated countries enlisted in European Union Convention or the combination of the two. As stated in the proposal, after having obtained a European patent, an applicant is eligible to apply for a European patent with unitary effect within a month. This European patent with unitary effect would enable the patent to be legitimate in all 25 countries. The patent will become valid in participating countries after it has been published in a European patent bulletin. The participating countries are obliged to revoke a national patent before the publishing of the European patent with unitary effect.

An application for the European patent with unitary effect may be written in any official language of the European Union. Also, certain payment schemes are being initiated as to cover the expenses of translation of the documents into official European Patent Office (EPO) languages. In fact, EPO is currently working on the development of the automatic translation system that would allow to translate the applications in any official language of the European Union. This would make the information on European patents much more accessible. Yet, the automatic translation could only accommodate the informational needs as it would not be legitimized. Thus, in case of legal matters or disputes, inventions must be described in an official EPO language.

One of the main features of the European patent with unitary effect is that it becomes valid and gains the same legal protection in all of the member countries of the EU. But a European Union patent could be granted only if its definition was the same in all of the participating countries. This means that the restriction, transmission, assignment or even annulment of the rights of the European patent becomes effective not only in one, but in all of the member countries. The European Patent Court is responsible for resolving legal disputes related to the patents. The central division of the Unified European Court would be situated in Paris but depending on the nature of a case London and Munich would also be ready in dealing with such matters. Additionally, subject to a legal model of a member country, patent related cases could be investigated at either national or regional courts.

The European patent with unitary effect could be licensed for the whole or only partial territory of the participating countries. The owner of the patent may submit the application to EPO that would allow other persons to use his/her patent in exchange of a fixed rate. This would decrease the annual fee of the patent.

The holder of the patent is entitled to pay a single annual fee for the European patent. The annual fees would be progressive and dependent on the term of the validity and must be paid to EPO. 50 % of the fee is intended to be left to EPO, whereas the rest of the amount could be proportionally distributed among all participating countries. The amount of the fee has not been decided, but its size might be influenced by the spread of the innovations and business competition in EU. Yet, it is likely for the annual fees to be fairly high.

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