Unitary patent
The European patent with unitary effect, also known as the unitary patent, is a European patent which benefits from unitary effect in the participating member states of the European Union. Unitary effect means the patent has a common legal status throughout all the participating states, eliminating scenarios in which a patent may be invalidated by courts in one participating member state yet upheld by courts in another. Unitary effect may be requested by the proprietor within one month of grant of a European patent, replacing validation of the European patent in the individual countries concerned. Infringement and revocation proceedings are conducted before the Unified Patent Court, which decisions have a uniform effect for the unitary patent in the participating member states as a whole rather than in each country individually. The unitary patent may be only limited, transferred or revoked, or lapse, in respect of all the participating Member States. Licensing is however possible for part of the unitary territory. The unitary patent may coexist with nationally enforceable patents in the non-participating states. The unitary patent's stated aims are to make access to the patent system "easier, less costly and legally secure within the European Union" and "the creation of uniform patent protection throughout the Union".
European patents are granted in English, French, or German and the unitary effect will not require further translations after a transition period. The maintenance fees of the unitary patents are lower than the sum of the renewal fees for national patents of the corresponding area, being equivalent to the combined maintenance fees of Germany, France, the UK and the Netherlands.
The negotiations which resulted in the unitary patent can be traced back to various initiatives dating to the 1970s. At different times, the project, or very similar projects, have been referred to as the "European Union patent", "EU patent", "Community patent", "European Community Patent", "EC patent" and "COMPAT".
On 17 December 2012, agreement was reached between the European Council and European Parliament on the two EU regulations that made the unitary patent possible through enhanced cooperation at EU level. The legality of the two regulations was challenged by Spain and Italy, but all their claims were rejected by the European Court of Justice. Italy subsequently joined the unitary patent regulation in September 2015, so that all EU member states except Spain and Croatia now participate in the enhanced cooperation for a unitary patent. Unitary effect of newly granted European patents will be available from the date when the related Unified Patent Court Agreement enters into force for those EU countries that have also ratified the UPC, and will extend to those participating member states for which the UPC Agreement enters into force at the time of registration of the unitary patent. Previously granted unitary patents will not automatically get their unitary effect extended to the territory of participating states which ratify the UPC agreement at a later date.
The unitary patent system applies since 1 June 2023, the date of entry into force of the UPC Agreement.
Background
Legislative history
In 2009, three draft documents were published regarding a community patent: a European patent in which the European Community was designated:- Council regulation on the community patent,
- Agreement on the European and Community Patents Court
- Decision to open negotiations regarding this Agreement
In December 2010, the use of the enhanced co-operation procedure, under which Articles 326–334 of the Treaty on the Functioning of the European Union provides that a group of member states of the European Union can choose to co-operate on a specific topic, was proposed by twelve Member States to set up a unitary patent applicable in all participating European Union Member States. The use of this procedure had only been used once in the past, for harmonising rules regarding the applicable law in divorce across several EU Member States.
In early 2011, the procedure leading to the enhanced co-operation was reported to be progressing. Twenty-five Member States had written to the European Commission requesting to participate, with Spain and Italy remaining outside, primarily on the basis of ongoing concerns over translation issues. On 15 February, the European Parliament approved the use of the enhanced co-operation procedure for unitary patent protection by a vote of 471 to 160, and on 10 March 2011 the Council gave their authorisation. Two days earlier, on 8 March 2011, the Court of Justice of the European Union had issued its opinion, stating that the draft Agreement creating the European and Community Patent Court would be incompatible with EU law. The same day, the Hungarian Presidency of the Council insisted that this opinion would not affect the enhanced co-operation procedure.
In November 2011, negotiations on the enhanced co-operation system were reportedly advancing rapidly—too fast, in some views. It was announced that implementation required an enabling European Regulation, and a Court agreement between the states that elect to take part. The European Parliament approved the continuation of negotiations in September. A draft of the agreement was issued on 11 November 2011 and was open to all member states of the European Union, but not to other European Patent Convention states. However, serious criticisms of the proposal remained mostly unresolved. A meeting of the Competitiveness Council on 5 December failed to agree on the final text. In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located, "with London, Munich and Paris the candidate cities."
The Polish Presidency acknowledged on 16 December 2011 the failure to reach an agreement "on the question of the location of the seat of the central division." The Danish Presidency therefore inherited the issue. According to the President of the European Commission in January 2012, the only question remaining to be settled was the location of the Central Division of the Court. However, evidence presented to the UK House of Commons European Scrutiny Committee in February suggested that the position was more complicated. At an EU summit at the end of January 2012, participants agreed to press on and finalise the system by June. On 26 April, Herman Van Rompuy, President of the European Council, wrote to members of the council, saying "This important file has been discussed for many years and we are now very close to a final deal,.... This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council." The Competitiveness Council met on 30 May and failed to reach agreement.
A compromise agreement on the seat of the unified court was eventually reached at the June European Council, splitting the central division according to technology between Paris, London and Munich. However, on 2 July 2012, the European Parliament decided to postpone the vote following a move by the European Council to modify the arrangements previously approved by MEPs in negotiations with the European Council. The modification was considered controversial and included the deletion of three key articles of the legislation, seeking to reduce the competence of the European Union Court of Justice in unitary patent litigation. On 9 July 2012, the Committee on Legal Affairs of the European Parliament debated the patent package following the decisions adopted by the General Council on 28–29 June 2012 in camera in the presence of MEP Bernhard Rapkay. A later press release by Rapkay quoted from a legal opinion submitted by the Legal Service of the European Parliament, which affirmed the concerns of MEPs to approve the decision of a recent EU summit to delete said articles as it "nullifies central aspects of a substantive patent protection". A Europe-wide uniform protection of intellectual property would thus not exist with the consequence that the requirements of the corresponding EU treaty would not be met and that the European Court of Justice could therefore invalidate the legislation. By the end of 2012 a new compromise was reached between the European Parliament and the European Council, including a limited role for the European Court of Justice. The Unified Court will apply the Unified Patent Court Agreement, which is considered national patent law from an EU law point of view, but still is equal for each participant. aimed at implementation of the Unified Court and UPC in the UK provides for different infringement laws for: European patents litigated through the Unified Court; European patents litigated before UK courts; and national patents]. The legislation for the enhanced co-operation mechanism was approved by the European Parliament on 11 December 2012 and the regulations were signed by the European Council and European Parliament officials on 17 December 2012.
On 30 May 2011, Italy and Spain challenged the council's authorisation of the use of enhanced co-operation to introduce the trilingual system for the unitary patent, which they viewed as discriminatory to their languages, with the CJEU on the grounds that it did not comply with the EU treaties. In January 2013, Advocate General Yves Bot delivered his recommendation that the court reject the complaint. Suggestions by the Advocate General are advisory only, but are generally followed by the court. The case was dismissed by the court in April 2013, however Spain launched two new challenges with the EUCJ in March 2013 against the regulations implementing the unitary patent package. The court hearing for both cases was scheduled for 1 July 2014. Advocate-General Yves Bot published his opinion on 18 November 2014, suggesting that both actions be dismissed. The court handed down its decisions on 5 May 2015 as and fully dismissing the Spanish claims. Following a request by its government, Italy became a participant of the unitary patent regulations in September 2015.