Unitary patent and Unified Patent Court reforms: state of play May 2018

ANALYSIS: The UK’s recent ratification of the Unified Patent Court (UPC) Agreement marked an important step towards a new system of unitary patent protection becoming operational. The process has been lengthy and complex and is not over yet.

Here we take a look at what the unitary patent and UPC reforms look like, what they might mean for businesses in sectors such as technology and life sciences, as well as what still needs to happen for the new framework to take effect.

A brief history

Plans to establish a cheaper and more efficient way for inventors to gain patent protection across Europe have been mooted for years.

Europe-wide patent protection is only possible at the moment by validating a European patent registered with the European Patent Office (EPO) in each individual country. To be valid in some of those countries, the patent must be translated into the native language. The European Commission previously said that it can cost more than €32,000 in translation and other costs to obtain a Europe-wide patent, compared with an average cost of just $1,850 in the US.

Keen for a less bureaucratic and more efficient system to help European innovators protect their inventions, 12 EU member states got together in 2010 to push for an EU-wide patent system. Under the Lisbon Treaty nine or more EU countries can use the EU’s processes and structures to make agreements that bind only those countries.

Initial plans were scuppered by the Court of Justice of the EU (CJEU) which ruled out the creation of a pan-European Patent Court to determine the outcome of disputes over unitary patents. However, plans for a remodelled UPC system were soon drawn up under an international treaty – the UPC Agreement – to provide for a judicial enforcement framework for resolving disputes over the validity and infringement of unitary patents.

New EU laws on the terms of unitary patent protection and the language regime to be adopted for the filing and processing of unitary patent applications were also introduced. The reforms survived legal challenges by Spain. Almost all EU member states are now behind the plans.

Unitary patents

Under the unitary patent proposals an inventor would make only one application to the EPO for patent protection across the EU countries that sign up to the scheme, with successful patents being published in English, French or German with patent claims in all three languages . Applications for unitary patent protection not made in any of those languages would have to be translated in order to be considered, although some applicants such as SMEs would be compensated for the cost of this…

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