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If it comes to fruition, the single EU patent system will be of tremendous benefit to small businesses
For what now seems like decades the member states of the EU have been debating the concept of a single patent system to cover the whole of the union, with a single court to hear cases.
Now – and in the context of European legislative debate, with extraordinary speed - there is the imminent prospect of a system that will fundamentally alter the European patent landscape. It is certainly a departure from the system of national rights and enforcement, and a move towards the long-sought single patent system.
On 17 December last year, 25 member states adopted the Unitary Patent and Language Regulations. On 19 February, 24 member states signed the Agreement on the Unified Patent Court to establish the central court (Bulgaria signed on 5 March). This agreement establishes the single court that will hear litigation on unitary patents and patents granted under the present European patent system.
The next step is the ratification of these agreements by states’ legislatures. At least 13 states need to ratify the agreements for them to become effective and these must include the UK, France and Germany as each has a veto. In the UK at least, ratification will be preceded by further debate on the effect of the agreement on the economy. It is not anticipated that the UK will ratify before mid-2014, so there is some way to go, and the optimistic prognosis of the first unitary patent application by early 2014 looks optimistic indeed.
One of the main aims of the unified patent system is to reduce the cost of prosecution and litigation for patent users. For prosecution, it is projected that the likely cost of obtaining a unitary patent will be 5,000 (£4,300) – although, during the transitional period the cost could be as high as 6,500 – as compared to present estimated cost of patent protection in all 27 countries of 36,000. The stated aim is to benefit SMEs and this is the driving force behind the reduced costs.
There is, though, no numerical indication yet of fees and costs for the unified patents court. The proposed procedure is a hybrid of common law and civil law. This means detailed paper-based arguments and witness evidence, court-appointed experts, technical judges and no automatic right to cross-examination.
The benefits in terms of harmonisation of procedure, practice and interpretation are clear. The EU was established as a single market, so to have a single patent covering the EU is consistent, and the European Patent Office is the sensible place for prosecution to take place.
Obtaining a single European patent will be similar to the present system, but without the validation and translation issues at the end.
The court structure too will provide a clear body of European patent law, ensuring consistency of interpretation.
In terms of the results, the benefits are incalculable. A successful infringement action equals a pan-European injunction. A successful revocation action opens up the whole of the EU.