Guest post by Gwilym Roberts of the UK firm Kilburn & Strode
In a flurry of decisions last week the EU confirmed the viability of a unitary EU patent but rejected any tenable form of a unitary court for enforcing it.
The enhanced cooperation process by which a subset of countries agree to a common procedure was agreed in terms of arriving at a language regime although this could still be opposed by Italy and Spain. Hence the path to a unitary patent, granted as an EU designation within the EPO framework, appears permissible. However the European Court of Justice (ECJ) in a separate decision rejected the idea of any unitary patent court system which the ECJ itself was not part of. Most users of the system are extremely nervous about using the ECJ as a possible forum for a unitary court simply because of the lack of experience there and so this seems insurmountable.
As a result in due course it will be possible to get an EU patent but it will still be necessary to enforce it country by country. Given that it is likely to take years to see the paperwork through to obtain a unitary patent in any event, therefore, little or no progress has been made and the benefits of a unitary patent without a unitary court go no further than a potential slight saving in translation costs. As a reasonable framework is being developed for translation savings via the London Agreement, which is already in place, it seems that it may make more sense to pay attention to increasing the number of countries party to the savings available by this alternative route.
In summary, therefore, there has been very little progress despite the excitement over the last few months in relation to an EU patent and the only question is whether, after 40 years of failure, anyone other than the Politicians is really very surprised?