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Patents in Europe 2013/2014 Helping Business Compete in the Global Economy Unitary Patent and Unified Patent Court: the Proposed Framework

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Patents in Europe 2013/2014 Helping Business Compete in the Global Economy Unitary Patent and Unified Patent Court: the Proposed Framework In association with Unitary patent and Unified Patent Court: the proposed framework Rainer K Kuhnen Patents in Europe 2013/2014 Helping business compete in the global economy Unitary patent and Unified Patent Court: the proposed framework Unitary patent and Unified Patent Court: the proposed framework The adoption of two key regulations late exclusive jurisdiction for litigation relating last year has paved the way for the long- to European patents and European patents awaited unitary patent and Unified Patent with unitary effect (unitary patents). The Court agreement was opened for signature from February 19 2013 and all EU member states, By Rainer K Kuhnen, KUHNEN & WACKER except Poland and Spain, have signed so far. Intellectual Property Law Firm The agreement will need to be ratified by at least 13 contracting states – including France, On December 11 2012 the European Parliament Germany and the United Kingdom – to enter adopted, at first reading, the EU Council’s into force. compromise patent package made up of two This chapter outlines the framework of the draft regulations establishing a unitary patent future unitary patent and UPC. for Europe and an agreement on a unified patent court (UPC). European patent with unitary effect The first regulation (1257/2012) Following the implementation of Regulation concerns the unitary patent, while the 1257/2012, applicants seeking patent second (1260/2012) sets out the translation protection in Europe will have another arrangements for such protection. The option beside national patents and traditional regulations were adopted under the European European patents. Union’s legislative procedure of enhanced Essentially, a unitary patent will be cooperation. That procedure allows nine or a normal European patent granted by more member states to move forward in a the European Patent Office (EPO) under particular area as a last resort if no agreement the provisions of the EPC. However, the can be reached by the European Union as a patent will be given a unitary effect for whole within a reasonable timeframe. Other the territory of the 25 participating states member states can opt to join at any stage, on request of the patent holder after the before or after enhanced cooperation has been patent has been granted. As the request for launched. Here, with the notable exception unitary effect is possible only post-grant, of Italy and Spain, 25 EU member states have the unitary patent will benefit from using opted to create unitary patent protection the well-established EPC system. Moreover, for their territories, using the enhanced the fact that the unitary effect can be cooperation procedure. requested only after the patent has been The UPC Agreement is an international granted means that the EPO’s daily work (ie, agreement open only to EU member states searching, examining and granting) should (which are a sub-group to the 38 member not be affected by the introduction of this states to the European Patent Convention new type of patent. (EPC)). The agreement aims to address The new structure is outlined in Figure 1 the problems involved with litigation of below. The unitary patent will come into effect European bundle patents on a national basis only after the central prosecution phase at the by establishing a specialised patent court with EPO and will be optional for patent holders. 14 Patents in Europe 2013/2014 www.iam-magazine.com Unitary patent and Unified Patent Court: the proposed framework Figure 1. New patent Filing of European patent application application structure Formal examination European search Central prosecution European publication of the application (European patent publication) Validation still required for non-EU Substantive examination Only one member states of application translation for and Spain and 25 EU member Italy states required Grant European European European European “Classic” European Opposition patent - patent - patent - patent with patents and European Switzerland Spain Italy unitary effect patents with unitary effect Limitation Translation regime to provide a translation of the patent into The ultimate goal of the unitary patent is any official language of the European Union. that after grant of the European patent, no translation will be required. This would The unitary patent features a significantly reduce the prosecution costs of compensation scheme for some applicants. patent protection for 25 EU countries. An EPO The costs of prosecution incurred by small programme called Patent Translate will offer and medium-sized enterprises (SMEs), natural free online access, for information purposes, persons, non-profit organisations, universities to automated translations of any European and public research organisations whose patent application and patent. Only in case of a residence or principal place of business is in dispute and at the request of either a court or an EU member state will be reimbursed (up an alleged infringer will the patent holder have to a ceiling), provided that the applications to provide a full, human-generated translation have been filed in another of the three official in the relevant language. However, as provided languages of the European Union (English, by Regulation 1260/2012, this will become French or German). reality only after a transitional period of up to 12 years. Entry into force The following transitional measures have While the regulations came into force on been put in place: January 20 2013, they will be applicable only • Where the language of proceedings at the from January 1 2014 or, since they are part of EPO was French or German, the patent the patent package, from the date of entry into holder will have to provide a translation of force of the UPC Agreement, whichever is the the patent into English; and later. Accordingly, a unitary patent may be • Where the language of proceedings at the requested from January 1 2014 or from the date EPO was English, the patent holder will have of entry into force of the UPC Agreement. www.iam-magazine.com Patents in Europe 2013/2014 15 Unitary patent and Unified Patent Court: the proposed framework UPC contracting state upon its request; the Currently, with the EPC bundle patents, only contracting state hosting a local division shall national courts of the EPC contracting states designate its seat. There may be up to three are competent to decide on the infringement additional local divisions in one contracting and validity of European patents. This creates state for every 100 patent cases per year in a number of difficulties for patent holders that contracting state. trying to enforce a European patent or when a The number of infringement cases in third party seeks the revocation of a European Europe in 2009 is illustrated below. The patent in several countries. German courts alone hear over 1,400 cases a First, multiple litigation incurs high costs year. Accordingly, Germany may request up to in the form of attorneys’ fees and court fees. four local divisions. Second, the involvement of multiple national A regional division may be set up for two courts applying different claim construction or more contracting states upon their request; bears the risk of divergent decisions, which they shall designate the seat of the division thus results in a lack of legal certainty. Forum concerned. The regional division may hear shopping is also inevitable, as parties seek to cases in multiple locations. For example, the take advantage of differences in: Scandinavian contracting states (Sweden, Finland • national courts’ interpretation of and Denmark) may request a regional division. harmonised European patent law; The seat of the Court of Appeal will be in • procedural laws; Luxemburg. Although it is clear that the Court • length of proceedings; and of First Instance and the Court of Appeal • levels of damages awarded. may refer questions to the European Court of Justice (ECJ), it is unclear whether this The UPC Agreement addresses the above includes questions on patent infringement problems by creating a specialised patent or solely questions on the interpretation of court with exclusive jurisdiction for litigation EU law. This issue itself may be subject to an relating to traditional European patents and opinion of the ECJ. unitary patents. Panel composition UPC structure The panels of the local/regional divisions are The UPC comprises a Court of First Instance multinational and made up of three legally and a Court of Appeal. qualified judges. In addition, for any panel of An illustrative chart of the basic court local/regional divisions a technically qualified structure and the composition of the panels is judge may be allocated from a pool of judges, outlined in Figure 2 below. either on request of one of the parties or on the panel’s own initiative, where it deems this The Court of First Instance is made up of: appropriate. • a central division; and Any panel of the central division will comprise: • decentralised local divisions (for each • two legally qualified judges who are contracting state) or regional divisions nationals of different contracting member (for two or more contracting states, if they states; and prefer to establish a common division). • one technically qualified judge with qualifications and experience in the field of The seat of the central division will be in technology concerned. Paris, with sections in London and Munich. The London section will hear cases related Competence of UPC to patent classifications A and C (chemistry, The UPC will have jurisdiction over both including pharmaceutical and human traditional European patents and unitary necessities). The Munich section will deal patents. The underlying principle for the with cases related to patent classification F competence of the UPC is that the central (mechanical engineering). division will have jurisdiction to hear A local division may be set up in a independent actions for nullity, whereas 16 Patents in Europe 2013/2014 www.iam-magazine.com Unitary patent and Unified Patent Court: the proposed framework Figure 2.
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