Changes in the law, notably a unitary European patent and Unified Patent Court, are set to transform the legal landscape of intellectual property
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If you know anything about protecting your intellectual property across Europe, you’ll be aware that you can apply for a European patent under a treaty signed as long ago as 1973.
At the moment, though, all you get under the European Patent Convention is a bundle of individual national patents. You still need to validate those patents in the countries where you want your invention protected. That’s likely to involve translation into the local language as well as more paperwork and higher fees.
Worse still, if your invention is any good and your competitors try to copy it, you have to bring infringement proceedings in each country where your intellectual property is at risk. You may end up arguing the same case against the same defendants at the same time in different national courts.
Sometime early next year, all that is expected to change. Single European patents will continue to exist but, if everything goes according to plan, there’ll be the option of a “European patent with unitary effect”, popularly known as a unitary patent. It will have effect in up to 25 countries – all the European Union states except Croatia, Poland and Spain. Translation requirements will be much less onerous. The cost will be proportionately less.
These reforms will take effect after 13 of those 25 countries, including the UK, Germany and France, have ratified an agreement signed in 2013. In Britain, the necessary secondary legislation has largely completed its passage through parliament.
Inventors will still be able to obtain classic national patents in separate European countries, which they may register in as many countries as they wish. That would still be necessary if they wanted protection in European countries that have not joined the deal. Alternatively, they can obtain single-country patents through national patent offices.
But the most dramatic change of all will be the launch of a Unified Patent Court (UPC). This will have exclusive jurisdiction over disputes about classic European patents as well as the new unitary patents. A single system will make it easier and cheaper for people to protect innovations and enforce patents against most of the EU single market.
All this has been a long time coming, but it was far from easy to achieve. One problem was that different European patent courts have developed different approaches. It’s normal in the UK, France and the Netherlands to try infringement of a patent and its validity at the same time. The Germans dealt with these issues separately, but this so-called bifurcation process is not expected to find favour in future.
“It’s hard to see how we could leave the European Union and remain in the Unified Patent Court”
As a supranational court, the UPC will become part of the judicial systems of the 25 states that have agreed to join it. However, it will be possible for patentees to opt out of the court’s exclusive jurisdiction during a transitional period. The new court will have some technically qualified judges as well as others who are legally qualified. Recruitment is now under way.