What is the european unitary patent ?
THE CURRENT STATE OF THE LAW: A CUMBERSOME AND COSTLY PROCESS
Today, an inventor can protect his invention by filing a national patent or a European patent. Once the European patent has been theoretically granted by the European Patent Office, the inventor must have it validated in each Member State in which he wishes to extend the protection (up to 38 states in total). This operation has the effect of transforming the European patent into a national patent, which implies that any dispute arising in this respect will be dealt with by the national courts.
THE UNITARY PATENT AS A REMEDY TO THE COMPLEXITY OF THE CURRENT EUROPEAN SYSTEM
To simplify the procedure while offering uniform protection in the countries of the European Union, the Unified Patent Court Agreement was put in motion in 2013. It created the European Unitary Patent (EUP), which removes the formality of national validations while giving the patent a unitary effect within the 26 Member States (the 28 Member States of the European Union except Spain and Croatia).
In addition, the Agreement provides for the creation of a Unified Patent Court (UPC) which will be competent to settle disputes between inventors or companies arising in relation to a unitary patent or a classic European patent. This new system will put an end to the risk of divergences between national jurisdictions on the validity of the same patent. Indeed, decisions affecting the life of the patent will now automatically apply in all the countries in which it is protected (for example, a patent revoked by the UPC will be cancelled in all the Member States at the same time).
It should be noted that the action for annulment of the unitary patent will not be subject to a statute of limitations, pursuant to Order 2018-341 of May 9, 2018.
This innovation represents a considerable simplification of procedures and a reduction in costs estimated at 70% compared to the annual cost of protection in the 26-member countries.
THE PROCEDURE FOR FILING A EUROPEAN UNITARY PATENT
To obtain a European unitary patent, the inventor will have to file a classic European patent application with the European Patent Office.
Once this title has been issued, he will have one month to make an application for unitary effect for the territory of the Member States having ratified the Agreement (this step thus replaces the national validations, which remain mandatory for a classic European patent).
UNCERTAINTY ON THE ENACTMENT OF THE EUP AGREEMENT
The creation of the unitary patent and the Unified Patent Court is subject to the entry into force of the UPC Agreement, which itself had to meet several conditions:
- At least 13 Member States of the Agreement must ratify it (a condition already fulfilled).
- The three largest patent applicant countries, namely Germany, the United Kingdom and France, must ratify it. Two problems have surfaced. On the one hand, the ratification of Germany is delayed by an appeal before the Federal Constitutional Court. On the other hand, although the United Kingdom ratified the Agreement on April 26, 2018, its upcoming exit from the European Union calls into question its participation in the enhanced cooperation. The question of the fate of the post-Brexit unitary patent is therefore added to the long list of the ongoing negotiations on the conditions for British access to the single market after 2020.
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