Unitary Patent on track!

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.

Benoît Battistelli


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4 comments on Unitary Patent on track!

  1. Ron says:

    My colleague Europasionaria and I have been live blogging from the Council meeting on the patent decision yesterday (see the time before 13:45):

    But I think it’s a bit wide-ranging to compare the decision on the Euro – which was taken in part as a side deal to German reunification – and the EU patent.

  2. Magnus S says:

    But does it make sense to have a unitary patent without a litigation agreement? I guess that infringement could be dealt with by national courts at a national level, but what about nullity? Can the Court of one contracting state, such as e.g. Greece, nullify the entire unitary patent? Or would the "transitory solution" include a transitory "partial nullification" of the unitary patent on a state by state basis?
    This sounds interesting.
    And then we have Italy and Spain which, for many products, are still important markets which will have to be dealt with separately…

  3. Hans says:

    Dear Mr. President,
    You say you’re disappointed about the litigation court conclusion, but happy about the unitary patent decision.
    I haven’t made my mind up yet to be happy or sad.
    The question which I ask myself is: What is the value of a unitary patent, if you can’t enforce it in a litigation court with unitary effect?
    Nevertheless, as a true european citizen one must simply be optimistic that some progress is made. Long ago, the greek Plato said: "Never discourage anyone…who continually makes progress, no matter how slow."

  4. Moderator says:

    Thank you for your observations. I think it is fair to say that despite the concerns expressed by the European Court of Justice (ECJ) on the present proposal for the patent court the development around the EU or Unitary Patent is to be seen in a positive light. Never before has Europe been so close to the introduction of a unitary patent system, and I am confident that the momentum gathered in the past weeks will help us carry the project through to the next steps which are decisive for its completion. The European Commission has announced to present modifications to the patent court proposal already by the end of March, and I am optimistic that these amendments will take concerns voiced fully into account. It is quite normal that projects of that size and scope necessitate an intense amount of discussion among experts. But both the opinion of the ECJ and the outcome of the Competitiveness Council are an encouraging sign that the European patent system will be significantly improved soon, and that European businesses will stand to benefit significantly from these improvements as the chosen approach of enhanced cooperation will allow it for all EU member states to join in whenever they wish to. One might wish to see things developing faster but the introduction of the Euro was also a long process and consisted of many steps.

    Benoît Battistelli


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