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.
