29 April 2011

The Community Patent is Dead - Long Live the Unitary Patent

Despite such setbacks as the decision of the Court of Justice of the European Union on the incompatibility of the proposed European Patents Court with EU Law and the objections of the Italian and Spanish governments to an EU patent (see my case note on the CJEU's decision), the European Commission has proposed two regulations for a single European patent for the other 25 member states (see the press release "Commission proposes unitary patent protection to boost research and innovation" 1P/11/470).

The first proposed regulation would be for enhanced co-operation in the area of the creation of unitary patent protection. The second would be for translation requirements. The combined effect of those regulations would reduce the cost of patenting in the participating member states (which would include the UK, Germany and France) by 80%. Under the proposals applicants could apply to the European Patent Office for a European patent that would designate all the member states of the EU less Italy and Spain as a single territory for a single fee. The obvious saving lies in translation as the EPO operates only in English, French and German. Inventors and other applicants could file their applications in any language but they would have to lodge a translation of the specification in one of the EPO's three official languages and a translation of the claims in each of the other two.

The big lacuna in the Commission's proposal lies in enforcement. Clearly there is no point in having a unitary patent if it has to be enforced separately in each of the member states. The obvious solution would be a single EU patents court but, as I have already said, the previous proposals have been held to be invalid by the CJEU. According to the accompanying FAQ, "the Commission is in the process of analysing the opinion and considering ways to address the Court's concerns."

A single patent for the whole of the EU has been under negotiation for the over 40 years. It is undoubtedly in the interests of European industry and particularly private inventors, start-ups and other small and medium enterprises. I have followed every initiative from the ill fated Community Patent Convention to the attempt to revive the Community patent by means of a regulation in 1997 and, most recently, the proposed unitary patent for the member states less Spain and Italy and I shall continue to do so. If anyone wants to discuss the latest initiative they can do so by calling me on 0800 862 0055 or getting in touch through my contact form.

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