New European Patent System: A Long Way to the Unitary Patent

Conference on International Perspetives on Intellectual Property Protection, Shanghai, China, November 2-4, 2014. World Jurist Association, Washington D.C., 2014.

22 Pages Posted: 17 Nov 2014

Date Written: November 4, 2014

Abstract

Businesses throughout Europe have long called for the introduction of a patent system suitable for their needs, with the existing arrangements under the EPC being both costly (an annual maintenance fee must be paid in every participating state where protection is sought) and ineffective in terms of administrative requirements. Among the criticized features is the need to validate it through national offices together with the requirement of providing translations of the patent. Various proposals have been presented on the EU platform over the last 4 decades but none was adopted. The question of the language for the unitary patent, which of course is closely connected to the issue of costs as well as the procedure for dispute resolutions, quickly became a point of dispute. The initial idea of granting the authority to hear and decide patent disputes to the designated courts of the member states was rejected. In 2012, a package consisting of two Regulations and an international agreement on the establishment of the Unitary Patent Court was approved under an enhanced cooperation procedure. However it is not clear when it will come into effect as it is dependent on the ratification process of the agreement which is moving slower than expected. An action brought by Spain which claims that the package is contrary to EU law, is still pending before the CJEU. The system is opened to EU member states only (with the CJEU rejecting the idea of making it available to other countries interested in joining). The unitary patent is based on the existing European patent and will be administered by the EPO. The main objectives described above were addressed. The need for translations was significantly reduced; however, the amount of the fees has not been set. Furthermore, the position of the patent court towards the CJEU remains unclear and will be subject to further interpretation.

Keywords: Court of Justice of the European Union, EU Law, European Patent, European Patent Office, harmonization, Intellectual Property, IP Law, Meroni doctrine, patent application, place of business, unitary patent, TFEU

JEL Classification: K11, K12, K13, K20, K23, K33, K41, K42, L52, O34

Suggested Citation

Belohlavek, Alexander J., New European Patent System: A Long Way to the Unitary Patent (November 4, 2014). Conference on International Perspetives on Intellectual Property Protection, Shanghai, China, November 2-4, 2014. World Jurist Association, Washington D.C., 2014., Available at SSRN: https://ssrn.com/abstract=2524832

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