Information on the new EU Patent Package: One step more towards a harmonised intellectual property market

2015 was a landmark year for the European Patent Office (EPO). The latter constitutes the “one-stop-shop” for inventors in the European Union but also from third countries, as it offers a uniform application procedure which enables them to seek patent protection in up to 40 European countries. It is also an integral part of the European Patent Organization, an intergovernmental organization whose second part is the Administrative Council, which supervises the Office's activities.

These authorities have spent several years contemplating on the inauguration of a single, supernational patent application procedure, common for all European member states, but also on the existence of a Unified Patent Court that will handle any disputes on patent rights and infringements and offer a harmonized interpretation of the Unitary Patent Agreements.

The main legal framework for the unitary patent system are two Regulations, coming in force in 2013 ,  namely Regulation no 1257/2012, including the basic elements and the ratio of the Unitary Patent scheme and later the Regulation no 1260/2012 addressing the very important issue of the language and translation rules of the unitary patent applications. These regulations are the keystones of the “patent package” of the Union, namely the framework of the unitary patent, the new language regime and the introduction of the Unified Patent Court.

The unitary patent - or "European patent with unitary effect" - is a European patent, granted by the EPO, which offers the applicant the opportunity to gain protection simultaneously and automatically in the 26 Member States that have signed the Agreements. The unitary patent though will not substitute the national patents or the existing European Patent applications. Instead, the unitary patent will go “hand-by hand” with the other two systems and the applicant can file a request for both a European Patent and a Unitary Patent, under certain conditions. The applicants of the EPO will now have the opportunity to benefit from the simplified procedures and lower costs, while avoiding legal uncertainty due to the introduction of the Unified Patent Court in Europe.

The basic characteristics of the new Unitary Patent applications are particularly advantageous for both individual applicants-inventors and SME’s (Small-Medium Enterprises). The latter are particularly benefited by the new supernational regime, singe it is now more common to have a multi-national corporate presence than a single company operating on a national level and the need for a uniform patent  protection having equal effect in all participating member states is urgent.  The new regime, will not only favor the applicants in terms of fees but will also create- once all member states finally sign the Agreement-, one common patent market, offering secure and effective protection with minimum bureaucracy.

The process of the application, the examination, and the EPO grant formalities will not be amended under the new system; the proprietor can benefit from the system after the grant of the European patent.  In order to obtain a unitary patent, the patent owner must file, within one month of grant, a “Request for Unitary Effect”, also following the translation rules applicable until the transitional period is over. This unitary patent can be enforced or revoked in all participating member states, and can be licensed in respect of all these member states.

The above procedures cannot be initiated though before the Agreement on a Unified Patent Court enters into force (16351/2012).  This will happened once 13 contracting member states ratify it or after Regulation (No. 1215/2012) on the jurisdiction of the courts in civil matters addresses the issue.  Accordingly, the Unitary Patent regime will apply from the date of entry into force of the Unified Patent Court Agreement. As mentioned, the latter will eventually have exclusive competence over both unitary patents and standard European patents (as long as this is ratified from each contracting party). Up to date, all European Union Member States except Spain and Poland have signed the Agreement.

As Benoît Battistelli- President of the EPO- noted «Τhis is a hugely significant occasion for the European patent system. With the adoption of these rules today, the preparations for the unitary patent are complete. We are now legally; technically and operationally ready to deliver the unitary patent».

It is interesting to follow the step by step implementation of the reformed European patent system, since it will certainly lead to more business patent applications that will enhance the protection of entrepreneurial innovation in Europe and supersede any existing impediments in the application procedures.