An Overview
In reforms representing the most radical changes to the patent system since the European Patent Convention (EPC) came into effect in 1977, EU member states intend to introduce a unitary patent for European Union (EU) countries and create a new supranational court dedicated to patent disputes in Europe. The new court, known as the Unified Patent Court, will hear disputes not just on the new unitary European patents, but also on “classical” European patents.
Let’s first consider the current patent system in Europe. The EPC provides a centralised patent application procedure, in which the European Patent Office (EPO) examines and grants patents for EU member states and for other member countries of the European Patent Convention (EPC) such as Switzerland and Norway. Until now, a patent granted under the EPC (the classical European patent) is not a single legal instrument covering Europe, but a “bundle” of individual national patents. Once granted by the EPO, the individual EPC patent is administered by national patent offices and disputes on the granted patents are handled exclusively by national courts.
Reform Package
Although the EPC has been very successful, many users considered it to be inadequate for the Europe’s single market in the 21st century and too expensive for small applicants. In the last forty years there have been several attempts to introduce a new type of patent, a single legal instrument which would be valid in the whole territory of the EU (as opposed to a bundle of national patents), and to create a new European patent court to hear infringement, invalidity and other patent disputes.
The basic requirements for a patent to be granted are that the invention be novel, inventive and industrially applicable. Certain subject-matter is not patentable.
- The introduction into Europe of a unitary patent
- Language arrangements for the unitary patent
- A treaty creating a Unified Patent Court (UPC)
The unitary patent will stand alongside the classical EPC patent, with applicants required to elect which of the two best suits their legal and commercial needs.
The agreement establishing the new patent court requires ratification by at least 13 EU member states, which must include the UK, France and Germany. See the ratification progress here. At time of writing this text, Germany’s ratification was being held up by proceedings at the German national constitutional court.
Unitary Patent
A unitary patent - correctly called “a European patent with unitary effect” - will differ from classical EPC patents in that the unitary patent will be a single legal instrument, valid in all EU member countries participating in the project. Once granted, a unitary patent, unlike the “classical” EPC patent, cannot be split into national components and all transactions on a unitary patent (amendment, validation, revocation, transfer, etc) can only occur for all the relevant EU countries en masse. The EPO will be responsible for the unitary patent’s post-grant administration, such as the payment of annual renewal fees.
However, before grant of the patent, applications for unitary patents and classical EPC patents will be the same. To the extent that the unitary patent will be granted under the EPC by the European Patent Office under the same substantive rules (novelty, inventive step etc) as “classical” EPC patents, the unitary patent may be considered a new sub-species of EPC patent. The primary difference in the procedure for applicants will be the notification by applicants to the EPO (within three months of grant), by ticking the relevant box, that the protection sought is unitary protection rather, than classical bundle protection.
The new Unified Patent Court (UPC) will have exclusive jurisdiction in the case of disputes related to the unitary European patent. In addition, the UPC will also have jurisdiction over classical EPC patents, unless the owners have opted out of the UPC’s jurisdiction.
Unified Patent Court (UPC)
The UPC will be a court common to those EU member states which have ratified the UPC Agreement (the UPC contracting member states). It will hear cases of patent infringement and patent validity, and other patent-related disputes, in relation to unitary patents and, where not opted out, on classical EPC patents.
The UPC will comprise a Court of First Instance and a Court of Appeal, as well as a registry, an arbitration centre and a training centre.
- The Court of First Instance will itself have several divisions with differing roles: in addition to the so-called “central division” which will be split between Paris, London and Munich, there will be local and regional divisions across Europe (possibly about 16 of them) including one in London.
- The Court of Appeal will be in Luxembourg.
The UPC will be a powerful body, possessing considerable judicial powers across the combined territory of the UPC states, including injunctions, awards of damage, and evidence retrieval: the decisions of the UPC will be effective and have validity across the whole of the territory of the UPC states, as if it were one single unified jurisdiction.
It will have its own judiciary of both legal and technical judges, who will sit in multinational judicial panels of generally 3 or 4 persons on each case.
For full ratification the UPC is currently awaiting the decision of the German constitutional court – subject to this, the relevant states have agreed that some parts of UPC Agreement could be implemented early, with a “sunrise” institution starting prior to full operation.
