In through the outfield blog

29 November 2012

Catchup on the proposed European Union patent

This is a followup to my post back in April on the subject.  Sorry for the delay in reporting back !

In June 2012, 25 EU member states agreed on provisions for the European Union Patent. Only Spain and Italy did not participate, annoyed that the only languages permitted in the scheme were English, German and French.

Some people assume that the European Patent Convention (EPC) already offers patents with EU-wide effect. It's certainly not the same thing. A granted EPC patent, which can be in English, German or French, is really a bundle of national patents, where after an initial opposition period the patent can lapse from protection in individual countries due to a failure to pay national renewal fees, or because of national revocation proceedings. Similarly it could be amended nationally.

There is no requirement to list all EU member states when applying for patent protection through the EPC. So e.g. Belgium might be omitted.

Switzerland is in the EPC but not in the EU, so membership is not limited to EU states. New EU member states are required to join the EPC, and all currently do.

The European Union Patent would involve having patents granted through the existing European Patent Office in Munich, which already deals with the EPC patents. All EU states must be included in such grants. The patents stand or fall as a result of centralised patent litigation, and lapse as a whole as well.

The main stumbling blocks in a struggle which has been going on since 1973 has been the language used in the patents and in the law courts, plus where the law courts would be.

The following provisions have been agreed on:

The patent specification can be in English, German, or French.

There will be a single renewal fee for the entire EU.

The Unified Patent Court will deal with infringement and revocation proceedings. It will have a court of first instance and a court of appeal. The court would have its seat, registry and central division in Paris. Litigation is in the same language as the patent.

The central division would have thematic branches in London (chemistry cases, including pharmaceuticals) and Munich (mechanical engineering cases), each expected to take about 30% of the case load. 

The choice of Paris is distinctly odd, as far more patents are published through the EPC in English or German, and London has much more IP law talent than Paris. Local courts can also be set up by individual countries.

There will be a transitional period of seven years during which either national or the Unified Patent Court can be chosen for litigation (if the latter, that choice cannot be changed).

Originally the court was to be mainly in Paris and partly in Munich, but David Cameron, the UK's PM,  protested.

Patent costs will be greatly reduced as a result of the deal. The European Union estimates that costs will fall from 32000 Euros to 6500 Euros, a saving mainly from translation costs. This does mean that some patents with force in the UK will as a result be in German or French, which will cause problems for researchers, librarians, industry and lawyers. Machine translations only go so far.

The position of Spain and Italy as to possible involvement is still unclear, as are various technical issues. Also unclear is how the new courts will be funded.

It is uncertain when all this will take effect. There is a detailed Wikipedia article on the subject.

[The European Parlaiment passed the legislation, see my later post. Ed.]

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