Patents are currently granted either at the national level (e.g. Belgian patent) or at the European level (European patent). Although the granting procedure applied by the European Patent Office (EPO) is centralised, the European patent breaks down after grant into a bundle of patents with effects similar to national patents in the EPO Member States in which the European patent is validated. The protection of your invention is therefore always purely national protection. If you want to protect your invention throughout the EU, you must:
- run national patent procedures in the 27 EU Member States, or
- apply for a European patent and have it validated in every Member State.
This is a complex and costly process:
- different translations of the patent are required,
- annual maintenance fees must be paid in the various Member States and,
- if necessary, the patent must be defended before the national courts.
The innovation market is fragmented (in practice, European patents are validated in only a few countries and they have different effects depending on the country in which they are validated) and, moreover, dispute settlement is not harmonised.
After decades of discussion, 25 EU Member States (all except Spain and Croatia) have decided to create a European patent with unitary effect by means of enhanced cooperation. Two regulations were adopted by the Council of the EU in December 2012 and set out the processes for obtaining unitary patent protection. The unitary patent will be a European patent, granted by the EPO and given uniform protection in the territory of the States participating in the enhanced cooperation.
In addition, the unitary patent has been supplemented by a dispute resolution system for classical European patents and European patents with unitary effect. Thus, on 19 February 2013, an Agreement on a Unified Patent Court was signed, on an intergovernmental basis, by the EU Member States (with the exception of Spain, Croatia and Poland). The Unified Patent Court will have jurisdiction both for proceedings relating to the validity of the patent and for infringement proceedings (counterfeiting).
This court will consist of a Court of First Instance, comprised of a central division and regional and local divisions, and a Court of Appeal.
Please note This reform will enter into force on the 1st June 2023.
The European patent with unitary effect
The ordinary procedure for granting a European patent is maintained. After the granting of the European patent, the patent holder has one month to request unitary effect for his European patent. The European patent with unitary effect will thus automatically confer protection in the territory of the participating Member States.
During a transitional period (lasting at least six years from the application of the Regulation), a translation into one of the EU languages will still be necessary to validate the European patent as a European patent with unitary effect. European patent with unitary effect can, however, be consulted free of charge in all the official languages of the Member States of the European Patent Organisation using machine translation software made available by the European Patent Office. This translation is provided for information purposes only and has no legal value.
Only one maintenance fee per year must be paid to the European Patent Office for the maintenance of a European patent with unitary effect.
The European patent with unitary effect may only be limited, revoked or lapse for all participating Member States at the same time.
The European Patent Office will manage the register of unitary patent protection.
The Unified Patent Court
At present, cases concerning the infringement and validity of European patents are decided by national courts. In practice, this can cause difficulties when the patent holder wishes to enforce his rights to a European patent in several countries. Disputes can be costly and lead to conflicting decisions, which creates legal uncertainty. Forum shopping strategies can be implemented, with parties taking advantage of the differences between the various national jurisdictions and their respective procedures.
The Agreement on a Unified Patent Court aims to remedy these shortcomings by creating a specialised court with exclusive jurisdiction and harmonising the scope of the rights conferred by a patent and the exceptions and limitations to those rights. The unified patent court will be a multinational court with jurisdiction over disputes concerning the validity and infringement of European patents and European patents with unitary effect. The court's decisions will be applicable in the territory of all the contracting Member States.
The Member States signatory to the Agreement may set up local or regional divisions of the unified patent court to ensure the physical proximity of the court to users. Each division (even local divisions) will be composed multinationally, which will guarantee a real "European" case law. Belgium will set up a local Belgian division, in accordance with the wishes of the interested parties, to offer companies local access to the new court system in their own language.
What will be the benefits of this reform?
The unitary patent and the Unified Patent Court offer companies better opportunities to defend their innovations and stimulate research and development. This reform is particularly important in the context of the current efforts to revive the European economy. The advantages of the unitary patent in terms of legal certainty, simplification of administrative formalities, reduction of protection and exploitation costs of patents make it a fundamental element of the EU's new industrial policy based on the promotion of innovation.
the unitary patent is granted by the EPO in accordance with the procedure established by the European Patent Convention. It therefore benefits from the quality standards recognised worldwide for EPO products.
maintenance fees for the unitary patent have been set at an affordable level, thus offering companies uniform protection at a low price.
- Broad territorial protection:
the unitary patent will offer uniform protection in those Member States participating in the enhanced cooperation which have ratified the Agreement creating the Unified Patent Court (potentially 25 Member States), instead of protection limited to just a few countries where the classical European patent is currently validated.
the annual fees for the unitary patent are collected by the EPO and not by the national patent offices. This means that users do not have to pay for validation, translation, publication, etc., as is the case with the current European patent, whose validation and maintenance process can be complex and expensive.
the unitary patent coexists with national patents and the classic European patent, with users retaining the choice of the most suitable protection routes according to their needs. The awarding of unitary effect after granting therefore allows companies to avoid having to choose at the beginning of the procedure between a classic European patent and a unitary patent.
- Legal certainty:
disputes relating to the unitary patent will fall under the exclusive jurisdiction of the Unified Patent Court, which will ensure the consistency of high quality case law.