A unitary European patent and unified European Patent Court have been the subject of discussion for some decades now. A unitary European patent is a European patent to which unitary effect is given for the territory of the Member States participating in the unitary patent scheme. The unitary patent will co-exist with national patents and with classical European patents. The intention is that all patent owners will in future be able to choose between various combinations of classical European patents and unitary patents. Currently, various national courts and authorities of the contracting states of the European Patent Convention are competent to decide on the infringement and validity of European patents. As noted by the EPO, in practice, this gives rise to a number of difficulties when a patent owner wishes to enforce a European patent in several countries: high costs, risk of diverging decisions and lack of legal certainty. The Agreement on the Unified Patent Court will create, when ratified by all required EU Member States, a specialised patent court ("Unified Patent Court", or UPC) with exclusive jurisdiction for litigation relating to European patents and European patents with unitary effect (unitary patents).
However, it has never been possible to obtain full agreement by all Member States. A proposal was put forward in 2010 by the European Commission to use “enhanced cooperation” as the way forward. This meant that the Member States that did not want to be part of the resulting system could effectively opt out. Two Regulations creating the Unitary Patent and an Agreement on the Unified Patent Court and language requirements were adopted in December 2012 and came into force in January 2013. The Unified Patent Court Agreement needs to be ratified by Member States to be effective. Once 13 Member States, including UK, France and Germany, have ratified the Agreement, it will come into effect. The Unified Patent Court will be set up and the first Unitary Patents can be granted, having effect in each Member State that has ratified the Agreement. As of May 2015, Austria, Belgium, Denmark, France, Malta and Sweden have ratified the Agreement.
On 5 May 2015, the Court of Justice of the European Union (CJEU) issued two separate judgments (C‐146/13 and C‐147/13) ruling on the validity of respective regulations on the administration of the unitary patent system (Regulations 1257/2012 and 1260/2012 of the Official Journal of the European Union). The judgments were in response to a challenge from Spain that the regulations were invalid. Effectively, Spain’s challenge was based on an allegation of inadequate legal basis for the Regulation, that it was wrong to let the Administrative Council of the EPO set renewal fee levels and the apportionment of renewal fees between Member States, and that there would be no requirement for a Unitary Patent to be translated into Spanish. This challenge was rejected. Thus, there are no pending judicial hurdles at this time to the introduction of the Unified Patent Court, and therefore to the Unitary Patent. It is possible for the EPO to set the level of the fees, including the “opt out” fee for those with existing European patents and patent applications to opt out of the jurisdiction of the Unified Patent Court. It is likely that the level of grant and renewal fees set by the EPO will have a significant influence on how many applicants choose a Unitary Patent rather than the current potential bundle of national patents that can result from the grant of a patent by the EPO. Seven more Member States – including UK and Germany – are needed to ratify the Agreement on the Unified Patent Court. According to some European Associates, a single patent covering the whole of Europe may be implemented by the end of 2016.
by Sarah Herbert
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