EU patent: is this really the last mile?

The current EP is actually a bundle of national patents and is subject to every national law. To cover the entire EU, translation into all 34 languages is needed.

It takes time to obtain an EP and there are considerable costs involved, both of which put Europe in a poor competitive position against, for example, the US. For some time we have eagerly awaited the new unitary patent: it would be not only much more effective but also cheaper. In addition, a unitary patent that applies directly to all member states is more suited to the unitary market of the EU.

Two separate categories exist: the translation regulation and the unitary patent regulation together, and the unitary patent treaty. According to the translation regulation French, German and English will be the official languages for the unitary patent, so just one translation is required. Italy and Spain challenged this legislation, and even went to the Court of Justice of the EU (CJEU).

In 2009 the possibility was created for member states to accept the translation regulation as it was and leave the dissenting parties perhaps to ‘get in later’. On March 10, 2011, an agreement was reached on the unitary patent as well, with member states choosing ‘enhanced cooperation’ as the preferred outline, under which draft regulations would have to be composed and then polished to everyone’s satisfaction.

Agreement on the language and outline, however, has not taken Europe very far because an applicable law system has not been designated. Under the current system national courts have been assigned jurisdiction, but for the unitary patent Europe would rather establish a brand new Unified Patent Court (UPC).

On March 8, 2011, the CJEU advised the member states that a UPC was not allowed under current EU law. To avoid possible invalidity of their court, the states drew up a draft treaty that did not contravene any EU rule, merely constituting an agreement between 25 contracting parties to establish a UPC.

The UPC will have to judge both existing EPs and unitary patents. For a transitional period of five years legal actions concerning EPs can still be brought to national courts, after which the fate of all patents lies within the UPC. With this court, legally qualified and technically educated judges will be appointed from all over Europe. The UPC will consist of a ‘central’ division and local or regional divisions of the court that member states may apply to.

“IT IS UNCLEAR WHO WILL BE ON THESE COMMITTEES, WHAT QUALIFICATIONS THE MEMBERS WILL HAVE AND BY WHOM THE MEMBERS OF THE ‘POOL’ WILL BE PAID.”

In all of these divisions cases are handled by three judges. The central division will have to choose judges from a variety of countries and deliberations will be in the language in which a patent was granted, ie, English, German or French. With local divisions there will be one judge originating from the ‘home’ country and others from a general European ‘pool’ of judges; cases will be heard in the official language of the country of residence.

Consent to argue cases before the UPC will be granted to lawyers who may also appear before courts in contracting member states, EP attorneys according to the European Patent Office (EPO) and those who possess a EP Litigation Certificate.

There are some concerns around the logistics of a ‘pool’ of judges. Problems could relate to the permanent location of judges, the extent to which the combined judges are experienced, and the languages they speak. The appointment of these EU patent judges is to be left to the Advisory Committee, appointed by the Administrative Committee. It is unclear who will be on these committees, what qualifications the members will have and by whom the members of the ‘pool’ will be paid.

In addition, France, England and Germany are now squabbling over the seat of the UPC’s central division. It seems that Germany holds the best cards, having the EPO in Munich and being the largest patent filing member state. The EU council has expressed a hope that a final agreement can be reached in June 2012 at the latest. We hope that imminent political changes do not throw a spanner into this outcome.