Unitary Patent – The New European Patent RegimeDecember 12, 2013

Starting in 2014, the European Union will provide another option for obtaining patent protection throughout the European Union and a more streamlined approach to enforcing or invalidating patents throughout the EU. In 2012 the European Parliament and European Council approved the “EU unitary patent package,” which establishes the European Unitary Patent and the Unified European Patent Court. The Unitary Patent is scheduled to be effective January 1, 2014 or from the date of the entry into force of the Agreement on a Unified Patent Court, whichever is later.

Unitary Patent

Patent protection in Europe is currently obtained by individually applying for patents in the desired European countries, or by applying for a patent through the European Patent Office (EPO) and subsequently validating in individual countries after examination. Both of these options ultimately require a decision regarding in which individual European countries you desire patent protection. The Unitary Patent will alter this regime by allowing applicants to obtain a single “European” patent that is valid—has a unitary effect—in all 25 EU countries that are contracting members of the Unitary Patent. The Unitary Patent can be applied for by filing an application through the EPO and opting for the unitary patent. It will not alter the EPO’s current search and examination procedures or standards for granting a patent. A further benefit of the Unitary Patent is that it will reduce the need for applicant-validated translations for individual countries—under the Unitary Patent, machine translations of the application into each EU-contracting country’s language will eventually be utilized once machine translation technology is sufficiently improved. However, until machine translations in all contracting member languages are possible, the requirement will be that the patent is published in two languages. Thus, only one translation is required. Applications provided in English can be translated into any contracting member country’s language. Applications provided in French or German will be translated into English. It is expected that the first unitary patents may issue as early as April 2014.

Unified Patent Court

The Unified Patent Court will provide a judicial body with jurisdiction over European patents and Supplementary Protection Certificates. Currently, European patents must be litigated separately in each country where a patent has been validated and is in effect. Under the Unified Patent Court, the contracting countries transfer their jurisdiction over European patents and Supplementary Protection Certificates to the Unified Patent Court. This should alleviate the need for parallel litigation both with respect to validity and infringement. Under the Unitary Patent Court Agreement, the Unitary Patent will provide the “right to prevent direct use of the invention” and the “right to prevent indirect use of the invention.” The Agreement specifically exempts “acts done privately and for non-commercial purposes,” “acts done for experimental purposes relating to the subject matter of the patented invention,” “the use of biological material for the purposes of breeding, or discovering and developing other plant varieties,” “the extemporaneous preparation by a pharmacy, for individual cases, of a medicine in accordance with a medical prescription,” and actions exempted in previous Directives or Trade Agreements. Particular Courts will be set up in local and regional divisions and based on technology: London will house the Central Division for Life Sciences and Chemistry; Paris will house the Central Division for Physics and Materials; Munich will house the Central Division for Mechanical and Engineering; and the Court of Appeals for the Unified Patent Court will be located in Luxembourg. It is expected that the Unitary Patent Courts will be operable by 2015.

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