For over 30 years, there has been proposed a single unitary patent to cover the whole of the European Community. This was previously called the Community patent, but has recently changed its name to the EU patent.
For over 30 years, there has been proposed a single unitary patent to cover the whole of the European Community. This was previously called the “Community patent”, but has recently changed its name to the “EU patent”.
On the other hand, since 1978, applicants have been able to file European patent applications with the European Patent Office, a non-governmental organisation, and which is not part of the European Union, in accordance with European Patent Convention. The current European patent provides a single process up to grant, but as soon as the patent is granted, it must then be “validated” by filing separate patent applications in each individual European national state.
Historically, the European patent, and the Community patent (now called the EU patent), have been direct competitors, the advantage of the European patent being that it is already up and running.
The promised advantage of the EU patent, is that it is a unitary right covering the whole of the European Union, and without the need for validation after grant.
Historically, resistance to the EU patent has been based on the translation requirements into all EU languages.
For a long time the EU patent (Community patent) appeared to be dead in the water, but more recently there have been proposals to incorporate the EU patent at the end of the current European patent procedure, in the same way as if it were a normal national state validation.
The most recent development is that the Council of the European Union has authorised an “enhanced cooperation” among EU member states for the creation of a unitary EU patent. This has been requested by 25 of the 27 EU member states with the aim of establishing a single patent.
Assuming that the enhanced cooperation yields a positive result, the European patent system is now moving towards:
1. A normal European patent as at present, up until grant.
2. Upon grant, validation as an EU regional patent covering 25 out of the 27 EU member states, with Spain and Italy opting out.
3. The EU patent is based on the same language as the “parent” European patent, that is, with the specification in one of the official languages of English, French or German, and with the granted claims published in all three official languages.
4. Separate validations still required for Italy & Spain.
This latest development is a step towards companies being actually able to use the EU patent, However, the process has already been very lengthy, and progress in this area is incremental.
The EPO strongly welcomed the authorisation by the EU Council of the enhanced cooperation in the area of unitary patent protection. The EPO said:
"The decision of EU member states today is a decisive step forward to improve the European patent system", EPO President Benoît Battistelli said. "It also underlines the political commitment and clear determination of the EU to strengthen the competitiveness of the European economy by way of introducing a cost-efficient unitary patent."
"The EU member states, but also the European Commission and the Hungarian EU Council Presidency, as well as its predecessor the Belgian presidency, are to be congratulated on this achievement. The EPO will continue to provide its full technical and legal support to the Commission in the successful implementation of this unitary patent. It is a very positive day for the European economy and for Europe".
Full text of EU press release:
COUNCIL OF THE EUROPEAN UNION
Brussels, 10 March 2011
Council authorises enhanced cooperation on creation of unitary patent protection
The Council authorised the launch of an enhanced cooperation among EU member states
for the creation of a unitary patent title (5538/11 and 6524/11 and 6524/11 ADD1).
The use of an enhanced cooperation has been requested by 25 out of 27 EU member states with the aim of establishing a single patent that will be valid across the territory of the participating member states. The European Parliament gave its consent for using this procedure on 15 February.
All EU member states except Italy and Spain are supportive to use enhanced cooperation. The main obstacle to agreeing by unanimity on the creation of an EU patent is the number of languages in which the future unitary patent will be valid, hence the recourse to the enhanced cooperation.
The language regime for the future unitary patent system would be based on the language regime of the European Patent Office (EPO), where the official languages are English, French and German.
The already existing European patent requires validation of the granted patent separately in each and every EPO member state, as well as a full translation of the patent in the official language(s) of that member state. The future unitary patent would be automatically valid throughout the territory of the EU member states participating in the enhanced cooperation in the (EPO) language in which it has been granted.
The enhanced cooperation would remain open for non-participating countries, and access to the unitary patent on the territory of participating Member States would also be available to businesses from non-participating Member States.
Article Published March 22, 2011