Reasons to be cheerful: The case for the Unitary Patent
It is said that the Unitary Patent will be a cheaper protection option for rights holders. A lot of figures have been published about the potential savings. Most of these figures are flat-out wrong since they neglect the London Protocol, which makes many translations redundant.
But even the figures that take the London Protocol into account are misleading. Yes, annuities will be substantially lower if one compares a traditional European Patent validated in all participating member states and a Unitary Patent. But generally speaking, only the pharmaceutical industry seeks protection in every country.
The average European Patent—of even prolific filers such as Siemens, Philips or Samsung—is valid in no more than six countries. The cost of a Unitary Patent is expected to be about the same as for that average European one. I do not believe that the prospect of enjoying protection in all countries for the same price will induce too many filers to seek unitary protection.
The disadvantages are apparent: (i) no opt-out from the new system; (ii) no transfer of title on a country by country basis; and, above all, (iii) no phase-out of protection for lower costs. An owner of a Unitary Patent cannot allow protection to lapse in selected countries—it is all or nothing.
However, this is not really an issue for now. Every applicant will make his or her reasoned decision upon grant of the European Patent. Practitioners can counsel or do guesswork. If in doubt, a traditional European Patent will be recommended along with an opt-out declaration. Little to nothing will be changed in day-to-day work.
The question is not whether there will be many Unitary Patents, but whether the new litigation scheme will be ‘popular’, whether it will be fair, and whether it will live up to the expectations of those who promoted it. It is the Unified Patent Court which will potentially carve a new landscape for practitioners. British barristers will have to litigate in ‘German’ courts, and face motions for bifurcation.
French maîtres will have to plead in Italy (if the rumours about Italy’s participation are true). German patent attorneys have the prospect of crossing swords with colleagues from Eastern Europe with little experience in patent litigation, because no patent litigation to speak of has taken place in their country.
These Eastern European attorneys have a chance to prove their aptitude in the new market. Everyone will be thrown back to their time at law school, having to construe new laws which are considered common but which cannot be common for British and Continental law at the same time.
Theories discussed on office floors and in the bars of conferences cover a wide spectrum:
