A single patent for the European single market has been a policy goal for over four decades. The last hurdles to an agreement in principle have been:
The first of these hurdles was agreed on 29 June 2012.
The debate now continues in the European Parliament over whether the CJEU will have jurisdiction.
The planned scheme for a Unitary Patent will allow for patents to be granted that are simultaneously enforceable across 25 European countries. Spain and Italy have opted out for the present. See our Autumn 2011 edition of this newsletter for details.
Central Division of the Community Patents Court
In a true spirit of compromise, the Central Division of the new court is to be shared between Paris, London and Munich, with London assuming responsibility for patents concerned with life science and chemistry, and mechanical cases going to Munich. This split gives recognition to the valuable body of UK expertise in life science and pharma, and the significant mechanical expertise built up in Germany's motor industry:
London - chemistry, pharmaceuticals, International Patent Classification C; human necessities, International Patent Classification A;
Munich - mechanical engineering, International Patent Classification F;
Paris - everything else
This much is good news for London. The UK government and the Chartered Institute of Patent Attorneys have welcomed this result. The President of the Chartered Institute of Patent Attorneys, said: "London [will have] an important role in hearing cases in an area of technology and intellectual property law where we have a great deal of expertise: pharmaceuticals and life sciences".
The language regime is also a compromise. A transitional requirement is that the entire patent must be translated into one other EPO language (plus Spanish and Italian if those states are also required). This requirement will continue for 12 years, or earlier if machine translations obviate the need for translation of the entire specification. This will eventually make the grant process cheaper, but not in the short term - see our website article "Zombie Fact - The European Commission's Projected Cost Saving from the Unitary European Patent"
Another positive is that there will be a single renewal fee. If set at a sensible level, this could be very attractive to large patentees.
Appeal to the ECJ?
The EU Council "suggested" deleting from the draft Regulation three articles concerning the substantive rights granted by a Unitary Patent. (Articles 6 and 7 defining direct and indirect infringement, and Article 8 defining exclusions such as private and non-commercial acts, experiments and medical trials.) Removing these definitions of substantive rights (and shifting them to the Court Agreement) would remove them from the jurisdiction of the ECJ.
Within the community of patent users, it is seen as important that there should be no appeal to the CJEU on these substantive matters. That Court has not won favour for its decisions in trade marks matters and is widely considered to be too slow and poorly equipped to handle complex patent cases.
Unfortunately, in an earlier debate, MEPs declined to delete these articles and are now reacting against the "suggestion" by the Council that they should reconsider the matter. Indeed, MEP Bernhard Rapkay of Germany, who helped broker the text of the agreement in December 2011, says that without these provisions there would be "nothing left to regulate".
There are reports (e.g. from Alex Barker, Financial Times EU Correspondent) that pressure to avoid bringing patent disputes under the jurisdiction of the CJEU is coming from UK "eurosceptic" backbench MPs, but that is just UK press spin. Industry lobby groups across Europe are firmly against involvement of the ECJ. The President of the European Patent Lawyers' Association reports "Practically all circles of industry fear that if these provisions remain in the regulation, this could become a deal breaker". He warns that ignoring the wishes of users will lead to a repeat of the history lesson of 2003 when the Commission and the member states tried to impose a patent litigation system onto users which led to a unanimous rejection by users so that the Commission had to shred the proposal.
If the CJEU is to be the ultimate court of appeal, many users will simply decline to check the box that says "unitary patent", and in many cases that may be our advice to clients if MEPs insist on CJEU involvement.