Will Poland join the Unitary Patent system?

05-02-2013

In a meeting at Poland’s Presidential Palace on January 23, the Polish government decided to not to sign the Unitary Patent (UP) agreement until it has observed how the system is implemented in other European countries.

Poland’s government voiced support for the UP system in December but in January’s meeting, Janusz Piechociński, economy minister and Michal Boni, digitalization minister, said it is too early to adopt the agreement and that the proposed system could harm the country’s economy.

The decision has left business owners and IP professionals doubtful that Poland will ever ratify the UP.

The UP system proposes a single patent for all signatory states and the creation of a Unitary Patent Court (UPC) system to handle disputes. Under the current European patent system, patent owners have to submit a single application nominating member states they’d like protection in, then enforce their patents separately in each state. The UP will not initially replace this system, but will run alongside it.

Both the UP and the UPC were agreed by the European Parliament and Council in December last year but before it can be implemented, it must be ratified by 13 participating states including the UK, France and Germany. Ratification is due to take place by November this year.

But while European Patent Office (EPO) president Benoit Batistelli says the new system will reduce patent protection costs and remove a risk of conflicting patent decisions across member states, some countries are concerned that adopting the UP will make processing patents more costly and will stifle domestic innovation. Spain and Italy have opposed the system since 2011 and while Polish officials have not ruled out signing the agreement, IP practitioners are doubtful it will be ratified.

“The question of whether to join the UP system was not discussed at all in Poland [before it was approved by Parliament]. It was only the initiative of some people from government. And if you consider the structure of Polish industrial property, it does not make sense,” said Rafal Witek, partner at WTS Patents.

“Poland is not an innovative country,” says Witek, citing this year’s patent filing data released by the EPO that of more than 60,000 European patent applications granted last year, only 0.2 percent originated from Poland.

“If you’re seeking patent protection in Poland, you still need to translate your application into Polish, which means in practice only 10 to 15 percent of applications are validated, but if we join the UP, the number of foreign patent monopolies will become much higher.” he says.

Emil Muciński, a spokesperson for Poland’s Business Centre Club, agreed.

“Polish companies want to be an active creator of the Polish economy, not a reproducer using foreign inventions and incurring the cost of license fees. The introduction of a unitary European patent system impact on the decline in motivation our companies to patent their ideas and hinder the development of innovation our businesses,” he said.

Muciński also said that entrepreneurs in Poland are concerned that adopting the UP system will lead to complex and costly litigation abroad as well as high translation costs. Witek agreed, adding:

“Politicians tried to encourage countries like Poland to adopt the UP system by saying it would be cheaper, but nobody knows what the exact price will be, because it has not been disclosed. If you’re a small company interested in validating a patent in just one or two countries, the UP system is not going to be cheaper.”

If Poland joins the UP system, Iwona Płodzich-Hennig, an attorney at JWP Patent & Trademark Attorneys, said it could lead to an eventual collapse of the national patent system. “Most innovative companies will prefer to obtain a UP rather than a Polish patent,” she added.

Patrycja Cielenkiewicz, also of JWP Patent & Trademark Attorneys, agreed that the UP will likely lead to a decline in the number of national patent applications, and also said it will likely lead to an increase in the number of patent infringement cases against Polish entrepreneurs. “They will have to defend themselves against allegations in a foreign court, in proceedings conducted in a foreign language,” she said.

Despite early support from the Polish government, Cielenkiewicz believes that the recent decision to delay signing the agreement is an encouraging sign that Poland may not sign at all. Płodzich-Hennig believes that if nothing else, the delay will allow Polish business owners some time to work on innovation and observe the system’s impact on other European economies, and Witek believes it is now unlikely that Poland will ratify the agreement at all.

And while Poland’s decision will not directly impact the UP’s process, it could lead to a rethink in other potential signatory states. “Poland is not a key player on the EU arena, so our decision to takes wait and see approach will not challenge the UP idea at whole. But it could motivate other EU members to consider UP patent system once again,” says Płodzich-Hennig.

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