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European Unitary Patent: light at the end of the tunnel?

European Unitary Patent: light at the end of the tunnel?


First envisaged in 1975[i], the Unitary Patent system aims to provide a simplified route to obtaining and enforcing patent protection across Europe. After nearly 40 years of negotiation, an “historic breakthrough”[ii] was achieved on Friday, 29 June 2012 in relation to the European Union’s Unitary Patent system and it looked likely that the system would come into effect in the short term. Unfortunately, by close of play Monday, 2 July, the issue was re-opened.

Following intense debate, the European Council had agreed on the location of the Central Division of the European Unified Patent Court. Unsurprisingly, the discussions ended with a compromise which divided the Central Division across three countries. Given the highly specialised nature of patent litigation, “thematic clusters”[iii] will be set up in two sections of the Court, with London playing host to chemical, pharmaceutical and life sciences subject matter, whilst Munich will handle cases involving predominantly mechanical engineering. All remaining subject matter will be handled in Paris.

Perhaps most controversial was the Council’s suggestion  to delete Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection. This would effectively exclude the Court of Justice of the European Union (CJEU) from hearing appeals from the Unified Patent Court, a move which was introduced to reduce the likely overall duration of the proceedings, as well as lessen the risk of uncertainty.

However, when put to the European Parliament in Strasbourg yesterday, the Parliament voted to postpone a decision on the unitary patent proposals and objected to the removal of Articles 6 to 8. It could now be many years before we see an agreement from the Member States regarding the European Unitary Patent system - a matter which has already survived many an attorney’s professional life.

Even if the agreement survives the re-opened discussions the rules of procedure have yet to be finalised providing plenty of opportunity for further debate, delay but, more positively, input to the final version of the rules.

[i] cf the failed Community Patent Convention 1975

[ii] European Council President, Herman van Rompuy

[iii] European Council report EUCO 76/12 – Brussels, 29 June 2012