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Towards the Unified Patent Court

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25 EU Member States have embarked on enhanced co-operation to implement unitary patent protection for their territories. The so-called “EU Patent Package” consists of two regulations: Regulation No 1257/2012 concerning the implementation of enhanced cooperation in the area of the creation of unitary patent protection and Regulation No 1260/2012 regarding the applicable translation arrangements. However, for the time being, Spain will not participate in this ambitious project.

Spain’s objections and the decision of the CJEU

Spain sought annulment of both regulations. Spain argued inter alia that the administrative procedure preceding the grant of the Patent defined by Regulation No 1257/2012, infringes the principle of effective judicial protection, since the procedure is not subject to a judicial review to ensure the correct and uniform application of EU law and the protection of fundamental rights. With regard to Regulation No 1260/2012, Spain claimed that it infringed the principle of non-discrimination on the ground of language since –according to Spain’s objections- the translation agreements discriminates individuals whose language is not one of the official languages of the European Patent Office (i.e. English, German and French).

Spain has not been alone in its battle against the Patent Package. Many opponents of the Unitary Patent Court have expressed their disapproval of the aforementioned regulations. Nevertheless, the Court of Justice of the European Union (CJEU) has recently rejected Spain’s objections to the Unitary Patent Package, effectively giving the green light to the project.

Considering that the regulations entered into force on 20 January 2013, supporters of the system consider Spain’s objections were the last stumbling block. However, the regulations will only apply from the date of entry into force of the Agreement on a Unified Patent Court. The Agreement will have to be ratified by at least 13 states, including France, Germany and the United Kingdom to enter into force; at the moment only 6 states –Austria, Belgium, Denmark, France, Malta and Sweden- have ratified the decision.

The unitary patent and Unified Patent Court

The application procedure, the examination of the procedure, and formalities of concession by European Patent Office will not change with the new regulation. The differences arise once a unitary patent is granted.

A unitary patent provides uniform protection with equal effect in all participating countries. Individuals requiring protection in a country that has not incorporated the unitary patent –for instance, Spain- will need to register the patent with their national authorities. In this case, to extend the effects of a unitary patent to Spain, the person seeking protection will need a license, a translation to Spanish and, in addition, will be subject to payment of a fee. Besides, Spanish courts will be the only competent judicial authorities.

The unitary patent offers protection through enforcement before a single court, as opposed to having to initiate proceedings in multiple national courts. The goal is to have a single trial rather than a wide range of resolutions by the courts of different countries. This will reduce both legal costs and the risk of diverging decisions, generally promoting legal certainty. The results are greater efficiency, swifter proceedings and a reduction in litigation expenses. Patents can nevertheless still be obtained from the national patent offices of each participating country; in such case the patent holder will be entitled to protection only at the national level.

The major goal of these regulations is to create an exclusive specialized jurisdiction for litigation relating to European patents. The Unitary Patent Court will be the single competent authority to hear disputes regarding the validity and infringement of the new unitary patent. An advantage of this will be the high level of specialization of the UPC, which will comprise a Court of First Instance (CFI), a Court of Appeal (CA, located in Luxembourg) and a Registry. The court shall base its decisions on EU law, the Agreement, the European Patent Convention (EPC), other international agreements applicable to patents which are binding on all the participating states (e.g. the TRIPs agreement and the PCT) and national law.

There will be a transitional period of at least seven years (which may be extended by another seven years), during which infringement and validity actions on European bundle patents may still be brought before national courts or other national competent authorities. Additionally, an owner of a European bundle patent will be able to opt out of the jurisdiction of the UPC on a patent by patent basis. In this case, the European bundle patent will remain in the jurisdiction of national courts. For example, if the owner of a European bundle patent valid in the UK chooses to opt out that patent, any litigation will be in the UK courts. Once a patent has been opted out of the UPC’s jurisdiction it can be opted back in at any time before the end of the transitional period, provided no action has already been brought before a national court.

The European Union has sought to achieve harmonization of patent law for almost 40 years. It is true that there are still some elements of uncertainty in the project and some aspects that need to be polished. In the meantime, however, the supporters of the new system are celebrating the CJEU’s decision.