On 27 June 2011 the EU Council agreed on a general approach to two draft EU regulations on the unitary patent for Europe. The first concerns enhanced co-operation on unitary patent protection, the second sets out the translation arrangements for such protection. 25 EU member states have now embarked on enhanced co-operation with a view to creating unitary patent protection for their territories. Italy and Spain, which do currently not participate in enhanced cooperation, can take part in the negotiations but will not be able to vote on the regulations in the EU Council unless they join the process first.
The regulation on unitary patent protection will be adopted in a "co-decision" procedure by the 25 participating EU member states and the European Parliament, whereas that on the translation arrangements will require a unanimous decision by those countries, after consultation of the European Parliament. As a next step, the general approach as agreed by the EU Council will be discussed by the European Parliament in a first reading after the summer break.
Under the proposal for a regulation on the unitary patent, the latter would be an optional adjunct to traditional national and European patents. A unitary patent would be a European patent granted by the EPO under the EPC to which unitary effect would be given after grant, at the patentee's request. So the unitary patent would not affect the EPO's day-to-day search, examination and granting work.
The EPO would however take on a number of additional tasks. For example, it would administer patentees' requests for unitary effect. It would also be responsible for collecting, administering and remitting renewal fees for unitary patents and for keeping a register of unitary patents which would include legal-status information such as licences, transfers, limitation, revocation or lapse.
As regards the draft regulation on the translation arrangements for the unitary patent, it is suggested that the EPO's tried and tested language regime is used. After grant of the European patent, no further human translations would be required; high-quality machine translation would be available. However, for a transitional period - until the machine translation system is fully operational - it is proposed that where the language of the proceedings before the EPO is French or German a full translation of the European patent specification must be provided into English or - if the language of the proceedings is English - into an official language of a EU member state. This translation must be filed by the patentee together with the request for unitary effect. The administration of these translations would be another additional task for the Office. In addition, it is proposed that for applicants who have their residence or principal place of business in an EU member state with an official language other than the three EPO ones and who obtain a European patent with unitary effect, a system of additional reimbursement be introduced for the costs of translating their application into the EPO language of proceedings. This compensation system too would be administered by the EPO.
Of particular importance for the EPO is that the fees generated by the unitary patent should fully cover its costs in carrying out the additional tasks involved, including the compensation system just mentioned, and that the European Patent Organisation's overall financial sustainability is maintained under the unitary patent scheme.
The aim is to adopt the two draft regulations as soon as possible. The European Commission hopes that the first unitary patents will be granted in 2013.
Another important aspect for users is the future patent litigation system. The EU Council has therefore made a clear political link between the introduction of the unitary patent and the creation of a unified patent litigation system.
On 8 March 2011, the Court of Justice of the EU (CJEU) issued opinion 1/09 on the compatibility of the 2009 draft agreement on the European and EU Patents Court (EEUPC) with the EU Treaties. It held that the proposed agreement was not compatible with EU law. In particular, it took issue with the fact that the EEUPC would be interpreting and applying EU law despite being outside the EU framework.
Against this background, the Hungarian EU Council presidency published a revised version of the draft agreement on what is now known as the "Unified Patent Court"
The UPC will comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance will be composed of a central division, as well as local and regional divisions in the contracting states.
To address the objections raised by the CJEU in its opinion 1/09, the agreement will be open only to EU member states and will include provisions on the primacy of EU law and requests for CJEU preliminary rulings. It will also contain rules governing the responsibilities of the contracting states and on liability for damages in case of infringement of EU law. The EU itself will no longer be a contracting party.
The UPC Agreement will be an international treaty between EU member states. It must therefore be adopted at a diplomatic conference and then ratified, normally by national parliaments. The intention is to convene such a conference as soon as possible. At the moment, it remains open whether all 25 participating EU member states must ratify the agreement before it can enter into force. But in any event ratification by the three states in which the highest numbers of European patents were in force in the year prior to that in which the diplomatic conference takes place will be required. Currently, that would be France, Germany and the United Kingdom.
The latest proposals are now being discussed by the EU Council under the Polish presidency.Further information