On 11 December 2012 the European Parliament voted positively in a first reading on the EU Council's compromise proposals for two draft EU regulations on a unitary patent for Europe. The first draft regulation concerns unitary patent protection, and the second sets out the translation arrangements for such protection. The draft regulations were accepted under the EU's legislative procedure of "enhanced co-operation": With the exception of Croatia and Spain, 26 EU member states have embarked on enhanced co-operation with a view to creating unitary patent protection for their territories.
The regulations entered into force on 20 January 2013. However, they will only apply from the date of entry into force of the Agreement on a Unified Patent Court.
2. The main features of the regulations related to unitary patent protection, and the EPO's role
The European patent with unitary effect ("unitary patent") will be an another option for users besides already-existing national patents and classical European patents. A unitary patent will be a European patent granted by the EPO under the provisions of the European Patent Convention to which unitary effect for the territory of the 26 participating states is given after grant, at the patentee's request. The unitary patent will thus not affect the EPO's day-to-day search, examination and granting work.
However, the EPO will take on a number of additional tasks. For example, it will administer patentees' requests for unitary effect. It will also be responsible for collecting, administering and remitting renewal fees for unitary patents and for keeping a register of unitary patents which will include legal-status information such as licences, transfers, limitation, revocation or lapse.
As regards the translation arrangements for the unitary patent, it was decided to use the EPO's tried and tested language regime based on three official languages, namely English, German or French. After grant of the European patent, no further human translations will be required if the patent holder opts for a unitary patent; high-quality machine translation will be available for the purpose of informing on the content of patents. For a transitional period - until the machine translation system is fully operational - 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 will be another new task for the Office. In addition, 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 languages and who obtain a European patent with unitary effect, a system of additional reimbursement will be introduced for the costs of translating their application into the EPO language of proceedings. This compensation system too will be administered by the EPO.
The details of the procedure to request and validate a unitary patent, as well as the level of renewal fees and the key under which the fees will be distributed to the participating states, will be prepared by the select committee of the Administrative Council of the European Patent Organisation.
At the select committee’s 11th meeting held in Munich on 9 December 2014, the draft Rules 1 to 24 relating to unitary patent protection – consolidated version were approved in principle.
The unitary patent may be requested from the date of the entry into force of the Agreement on a Unified Patent Court.
Unified Patent Court
Currently, 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. In practice, this gives rise to a number of difficulties when a patent proprietor wishes to enforce a European patent - or when a third party seeks the revocation of a European patent - in several countries: high costs, risk of diverging decisions and lack of legal certainty. Forum shopping is also inevitable as parties seek to take advantage of differences in national courts' interpretation of harmonised European patent law and in procedural laws, as well as differences in speed (between "slow" and "quick" courts) and in the level of damages awarded.
The Agreement on the Unified Patent Court addresses the above problems by creating 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).
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 (with seat in Paris and two sections in London and Munich) and by several local and regional divisions in the Contracting Member States to the Agreement. The Court of Appeal will be located in Luxembourg.
The Agreement was signed by 25 EU Member States on 19 February 2013. It will need to be ratified by at least 13 states, including France, Germany and the United Kingdom to enter into force.
This information was obtained from the European Patent Office.
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