11 March 2011
This week, the two long awaited EU projects related to the Unitary Patent and the European Patent Court were in the spotlight as a decision and an opinion from two EU institutions were announced. It is also worth noting that the very same week, the US Senate has largely voted in favour of a major reform of the US patent system. So, what was the European answer when other major patent systems in the world are improving or trying to reform themselves? Is Europe able to move forward or will it offer less favourable conditions for the protection of innovation that will undoubtedly affect our competitiveness?
Before answering this question, I must say that one thing has always astonished me: while Europe, or at least quite a number of EU Member States, was able to adopt a common currency after a relatively short period of negotiation considering the importance and sensitivity of the issue, it seems much more difficult to obtain a common patent with a single litigation system even though this is an absolute economic and legal necessity.
First came the opinion of the European Court of Justice regarding the patent litigation system on 8 March. One could have been disappointed that the Court concluded that the project was incompatible with the EU Treaty and have feared this result could negatively impact the discussions about the further Unitary Patent. But happily this has not been the case as the EU Council, with a group of 25 Member States, took a landmark decision pushing the enhanced cooperation for the Unitary Patent, on 10 March.
This decision represents a major step forward for European innovative industry, particularly the SME’s! Of course, to respond to the ECJ concerns, policy makers will have to be creative and a transitory solution for the litigation system will certainly have to be found. From the EPO side, I can assure you that all the necessary steps will be duly prepared in order to allow the rapid implementation of the Unitary Patent.