Coming Soon: A European Unified Patent Court (UPC) and Unified Patents

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.

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14 thoughts on “Coming Soon: A European Unified Patent Court (UPC) and Unified Patents

  1. Great !!! World Court by 2014…What about the local national panel…Are they ready to submerge their discussions in any trial…Truly a history could be set but no tragedy to be ended with… 13 EU member states…Unfortunately the unlucky has started with…

  2. This assumption is, to say the least, premature. The level of the annuities has not yet been set, and there’s considerable haggling going on behind the scenes as member states are loath to give up this income stream. The basic idea appears to be that the cost of the annuities should remain roughly the same as that for the current “average” European patent, validated in some 6-8 countries.

    Therefore, there may still be a cost advantage in choosing the old “non-unitary” route, if you’re content with validating in just 2-3 big countries, rather than this new “unitary” route. Both will remain available, and both will eventually be subject to the single jurisdiction of the Unified Patent Court.

  3. “I see no intellectually honest way of saying the Court has provided consistency”

    Well… Switching from a system where, based on same facts, the FR part of the EP patent is considered valid and infringed, the UK part of the same patent is considered invalid, preliminary injunction is ordered in Germany, NL part is limited and considered infringed, DK part is limited as in Netherland but considered not infringed, everything with a national 1st instance, a national 2nd instance and a national supreme court, to a system where validity and infringement are decided by a single system for the 25 states… Is it a lack of intellectual honesty if I ask you if you don’t see here a slight effort in terms of consistency ?

  4. I’m assuming annuities will be substantially lower than paying currently paying for multiple member countries.

  5. “…it is clear that European patent law will continue to be a mess for many years to come.”

    As someone who is more familiar with U.S. patent law, can you give a brief list/summary/rationale for this statement. I am just genuinely curious.

  6. “… a Unified Patent Court that intends to offer greater consistency in proceedings and judgments across the 25 participating member states.” A lofty intention. Our experience here in the States would, I think, suggest just the opposite. Given that the CAFC’s reversal rate in many jurisdictions is near 50% (generally on claim construction issues), I see no intellectually honest way of saying the Court has provided consistency. On this front, at least, I think they have failed. Utterly and miserably. What do you think gives the Europeans hope (especially since they have 25 masters to appease)?

  7. The progress is in the fact that you will have ONE patent to enforce (or revoke) instead of TWENTY FIVE patents. Far less expensive, far more predictable.

  8. Thanks for the heads-up, Dennis, but I’m afraid that there’s some confusion in your post. The “patent package” which has been passed has two parts:
    a) unitary patent (or, to give it its full name “European patent with unitary effect); and
    b) Unified Patent Court.

    The unitary patent aspect relates to the validation of EP patents after their grant by the European Patent Office. Alternatively to the current system of national validations, it will be possible to request a single, unitary validation for the whole of the European Union (minus Italy and Spain), without any additional translation (although, during a transitional period, a single translation to another European language of the patentee’s own choosing will be requested, purportedly in order to “teach” the machine translation software). The possible drawback of this route compared with the alternative of national validations in just a handful of member states is that the still-to-be-determined maintenance fees are likely to be steep. It will be worthwhile for most patentees to consider whether to request “unitary patent” validation or to validate nationally in just 2-3 countries.

    The other aspect is the Unified Patent Court. This new court (or rather, court circuit) will be competent not just for litigation regarding unitary patents, but any European (EP) patents in the participating member states, even those which were nationally validated. Again, there is a transitional period during which litigation on non-unitary EP patents may be started in national courts, rather than the Unified Patent Court. To make things slightly more complicated, Italy, which with Spain has preferred to remain outside of the unitary patent, has nevertheless shown interest in joining this Unified Patent Court.

    For both the unitary patent and Unified Patent Court to be definitely introduced, the international agreement establishing the Unified Patent Court will have to be signed and ratified by at least 13 EU member-states, including France, Germany and the UK.

  9. “European patent law will continue to be a mess for many years to come”

    you mean “a mess for US attorneys” ? As the US patent law may sometimes (I guess rarely) be considered as a mess for EU attorneys.

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