By Dennis Crouch
Europe has taken another major step toward actualizing a Unified Patent Court that intends to offer greater consistency in proceedings and judgments across the 25 participating member states. The new system passed by the European Parliament additionally creates an enforceable Unified Patent (European Patent) instead of requiring patent registration in each country. Risk-averse patentees will want to continue to obtain national rights in at least a handful of countries. However, for any given application, the Unified Patent appears to be an exclusive-alternative. Before it can become effective, least 13 EU member states need to ratify the package (including the big-three of UK, Germany, and France). The current forecast is that the first Unified Patent will be issued in 2014.
The setup for the Unified Patent itself appears straightforward. When the EPO grants a patent today, the owner really has a set of individual national patent rights that must be validated at the national level (with the payment of additional fees and translation costs). Under the new system, the patent right granted by the EPO will be enforceable via the court system described below without the national validation step. This approach saves the local fees and also translation costs. Under the rules, the patent must be filed in the English, German, or French language. No other translations of the application materials will be required. Spain and Italy could not suffer the language offense and will likely opt-out of the system. The EPO will set renewal fees with a discount for small entities.
In the agreed-upon enforcement system, a set of designated specialized trial courts in Paris, London, and Munich and potentially other locales will have exclusive jurisdiction over the enforcement of Unified Patents. It appears that an ordinary trial will be overseen by a tribunal of judges and have a "multinational composition." Judges will either be legally qualified (with patent litigation experience) or technically qualified. Those courts will have power to determine infringement as well as unenforceability. A specialized tribunal sited in Luxembourg will hear appeals and the Court of Justice of the European Union (CJEU) would remain the top court. The national courts will still be available to enforce national patents for a transitional period. After that, however, the UPC will apparently also be the sole judge of national rights.
This is a quite interesting development, but it is clear that European patent law will continue to be a mess for many years to come.