Changes to European Patent System

Wednesday 10th October 2012

The European Patent System has been in place for over 30 years and can provide useful patent protection in most European countries via a central application process at the European Patent Office.

The geographical coverage of a European patent can be broad and the quality of patents granted relatively high but the European patent system has often been criticised for being expensive.  One reason for this is that once the European patent is granted, it has to be ‘validated’ in each individual country required, usually involving paying an official fee to each national patent office, and filing a translation of some or all of the text of the granted patent into the local language.  If multiple countries are required, these fees and translation costs can mount up.  An additional disadvantage is that once granted, the European patent has to be enforced individually in each separate country in which infringement is taking place.  Thus if infringement is occurring in more than one European country, multiple court cases might be required.

It has therefore been proposed for some years to provide a European ‘unitary’ patent which simplifies and cheapens the procedure. 

Some changes have been agreed in principle to remove the individual validation requirements such that in the future a European patent can be granted and validated via a centralised procedure at the European Patent Office.  Likewise, it has been agreed that to keep the patent in force, only a single annual renewal fee will be required, rather than individual renewal fees in each country.  The law has not yet been updated to reflect these changes but it is hoped that this will be done in early 2013.

In a significant further step, following Hungary’s presidency of the EU in 2011, the locations of the Unitary Patent   Court have now been agreed, settling on a compromise between the central court being located in Paris, with further courts in London and Munich.  London will handle chemistry/human necessities cases, with Munich handling mechanical engineering and Paris handling all other subject matter. 

This will enable an infringement action to be brought at a single court in Europe, covering infringements taking place throughout Europe.  Combined with the other previously agreed features of the unitary patent system, the cost savings to business should be significant.

As a counter to the above however, some detailed provisions relating to the operation of the unitary court are still being debated, and some countries, including the UK, have expressed concerns that the unitary patent system might represent a step backwards in terms of the court procedure.  It is also to be noted that Italy and Spain have not signed up to the proposed new system.  Nonetheless, these developments bring the prospect of cheaper patents in Europe a significant step closer.

Whilst, the costs of a European patent application can seem daunting, under the current system it is generally the case that a European patent application will be cost effective if protection in four or more countries (including the UK if necessary) is required.  The new European system, when finally agreed, should be considerably more attractive.

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