Breakthrough for the unitary patent

03 July 2012

EPO President Benoît BattistelliLike many of you, I was especially pleased at the outcome of last week’s European Council regarding the proposed European patent court. Agreement was finally reached, at the highest level of European government, on the seat of the court’s Central Division, the issue which had been blocking the entire unitary patent package since the end of 2011. I am sincerely grateful to the political leaders who took this positive decision, as part of a set of measures to boost growth and innovation in Europe – and that is exactly what the unitary patent is about.

The unitary patent and the new court are designed to address the main gaps in the European patent system. At present, there is a central European authority – the EPO – for the grant procedure, but all the other aspects of the system – the arrangements for validation, enforcement and litigation – are “unbundled” and dealt with at national level. The result is a proliferation of national proceedings, which is costly and weakens legal certainty for users. The decision of 29 June is therefore to be welcomed, at a time of financial crisis with a serious impact on Europe’s economy.

Many commentators in and outside Europe have welcomed this long-awaited decision, which, after 40 years of negotiation, can justly be considered mature. Why has it taken so long to reach agreement? Of the many reasons, two particularly stand out.

First, with the EPO, Europe had already set up a very efficient and successful tool, so new projects would only be accepted if they were considered an improvement on the existing system. This certainly lightened the pressure which, in the absence of the EPO, would have been brought to bear on the negotiation process. Second, one of the main stumbling blocks in the proposals was the issue of translation costs. As long as a full or partial human translation of the Community or unitary patent in all EU languages was required, users saw the new system as far too expensive and unworkable. The problem of balancing economic imperatives against the need for public access to information in different languages led to a complete stalemate.

Two recent “innovations”, one political, the other technical, played a part in finding a solution. The new procedure for “enhanced cooperation”, put in place by the Lisbon Treaty, allows a smaller group of EU member states to take a proposal forward under certain conditions if a blockage persists. Members deciding not to join at the outset can do so later. The decision to implement enhanced cooperation – this was one of the first times the mechanism was used – was taken for the patent dossier in 2011, and 25 member states accepted the existing EPO language regime for the unitary patent. On the technical side, the EPO reviewed its machine translation programme in September 2010 and decided to set up a new system, now operational, which offers free, high-quality translation, potentially in all EU languages, for purposes of public information.

This is now history. What happens next? The European Parliament is conducting its own part of the legislative process for the unitary patent package. I am sure that this will also have a positive outcome in the next few weeks, as the Parliament has always strongly supported measures to stimulate innovation and help SMEs. Its decision will open the way for ratification by the member states of the international agreement on the court.

As far as the EPO is concerned, we are already engaged in the necessary preparatory work, so that we can spring into action on the day when the first application for a unitary patent arrives.

The decision on the seat of the patent court conveys a clear message that when Europe has the will to move forward, it can overcome the most difficult barriers.

Benoît Battistelli

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