European Union moves closer to a unitary patent system
California – Members of the European Parliament (EMPs) are in the process of negotiating an agreement to establish a unified patent system where a single patent could be filed in the European Union (EU) for participating nations.
On December 5, 2011, the EMPs’ Legal Affairs Committee approved a mandate to set up negotiations on creating a unitary patent system, a standardized language scheme, and a unified patent court. If an agreement can be finalized, then the measure must next be approved by the European Parliament, as well as 25 out of the 27 European member nations for it to go into effect (Italy and Spain have formally objected to the unified patent system measure and have opted out from being bound). If approved, the new patent system is expected to go into effect by 2014.
It is widely anticipated that a unified patent system would make the EU patent process more financially competitive with its counterparts in the United States and Japan. If established, it is expected that a unified patent system would cut costs for filing a patent in the EU by 80% and avoid the legal difficulties of obtaining and defending a patent in various nations with differing national patent laws and court systems. It has been estimated that the average cost of obtaining a European-wide patent under the current system is about $42,000 while the average cost for the same patent in the US is estimated at $10,000.
Currently, to obtain patent protection in the EU, an applicant must file a patent application in each individual country in which they seek protection and obtain a translation of the application into each country’s native language, increasing the costs of the patent application. EMPs have put forth a proposal where an applicant could initially file an application in any official language recognized in the EU. However, once the patent is granted, it will only be published ineither English, French or German and then, only translated into the remaining two languages that it was not initially published in. For example, a patent application filed in Greece in the Greek language, if granted, could initially be published in English, and then only available in German and French translations.
Establishing a unified patent court poses more difficulties for negotiators in resolving how the court will be financed, what language the court would operate in, and the operable statute of limitations for patent holders to bring matters before such unified patent court or in an EU member national court. Along these lines, the Polish presidency of the Council of Ministers stated “In order to ensure legal certainty for patent holders and third parties, in particular alleged infringers and the workability of the system creating the European patent with unitary effect, the establishment of a unified patent litigation system is essential. It is therefore necessary that the ratification of the draft agreement takes place and Court becomes fully operational as soon as possible.”
