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Media Briefing - EU Patent Gets Green Light

10 March 2011

LONDON, 10 MARCH 2011 - The majority of European governments have agreed today (10 March) to go ahead with plans to create a common EU patent.

A total of 25 countries out of the 27 European Union members voted to go ahead with the plans, using a procedure called enhanced cooperation. This procedure allows at least eight member states to band together to form their own policies if they cannot get the others to agree.

Spain and Italy have been opposing the plans for a single EU patent because it would remove the requirement to translate the single patent into all EU languages, keeping only English, French and German as the official languages of the Unitary Patent.

The future Unitary Patent will be valid throughout the territory of the 25 EU member states in the language in which it has been granted. Spain and Italy can join the scheme whenever they choose to.

THE CURRENT SYSTEM

• At present European Patents are granted by the European Patent Office (EPO) in Munich. However, on grant these take effect as a “bundle” of separate national patents in the 38 contracting states of the European Patent Convention (EPC) to which all 27 EU Member States, along with third countries like Switzerland or Turkey, belong.  Each national patent in the bundle must be translated into the local language before being validated by the national Patent Offices.

• An EU Patent, covering (as the Community Trade Mark) the whole area of the EU does not yet exist. The EU Member States have been unable to unanimously agree on the languages to be used, nor on a court system providing for a central enforcement of such a patent.    Today’s decision allows a majority of the Member States to proceed with the development of a Regulation for the Unitary Patent on the three language systems described below. 

THE PROPOSED UNITARY PATENT

• Under the Commission proposal, the applicant would file the Unitary Patent application and the patent would be granted in one of the three current official EPO languages - French, German or English.

• The applicant would have to provide translations into the other two official languages - but only for the section of the patent that defines the scope of the invention (the patent claims). It would then be enforceable throughout the 25 member states as a single legal right.

• It was proposed that there should be a centralised European patent litigation system to deal with both the Unitary Patent and the existing European patents.  However the CJEU’s rejection of the current proposal earlier this week means that the form of such a system remains uncertain.

COMMENT

Laura Whiting, IPMT associate from Hogan Lovells, said:
 
"The EU Council has today given the green light to proceed with the Unitary Patent - a single patent to cover 25 out of 27 EU member states (Spain and Italy are not currently participating). This decision gives the potential for EU businesses to obtain a patent covering most of the EU more simply and cheaply than at present. This decision comes after the CJEU gave its opinion on a Europe wide litigation system for patents this Tuesday.  It remains to be seen whether the Unitary patent can provide the significant benefits it aims for without the type of litigation system turned down by the CJEU this week, but there appears to be a significant drive in Brussels to finally push this project forward, after almost 50 years."

 
WHAT DOES THIS MEAN FOR BUSINESS?

• An Unitary Patent is designed to cut costs for European businesses.

• Cheaper to get a patent throughout Europe - Unitary patent avoids national validation costs and translation into multiple languages (especially beneficial for SMEs).

 
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