New EU patent system: will it work?
A new European unitary patent system gets signed into law tomorrow to make EU-wide patenting simpler and more cost-effective
In 2011, 142,810 patent applications were filed with the European Patent Office (EPO), half of which came from European countries. In 2012 that figure doubled. That’s a lot of new inventions needing protection.
Until now, the cost to implement a Europe-wide patent was so expensive it’s likely that the number of applications could have been higher.
Because of the lack of one unitary system, those seeking EU-wide protection could do so centrally through the EU but their application was then divided into 27 national patents, all of which needed individual approval from each relevant member state. Translation costs alone averaged around €36,000.
After considering translation and processing, the cost of obtaining a EPO registration is around 10 times more than that of a US patent and 13 times more than that of a Japanese one.
Those registering a patent with all 27 member states would also run the risk of having to defend their patent in 27 different jurisdictions.
This is about to change. Tomorrow EU member states will sign the international Agreement on the Unified Patent Court in Brussels during the Competitiveness Council, which was the final aspect of reform needed to implement a new EU-wide patenting system.
This means any inventor can apply to a European patent organisation for a unitary patent which is valid in 25 member states (Italy and Spain are, at this point, opting out).
Minister’s view
Ahead of the agreement Minister for Jobs, Enterprise and Innovation Richard Bruton said: “The signing of the Unified Patent Court will be a truly historic moment as it paves the way for the implementation of the patents package, which will give enterprises greater access to patent protection at European level, and make enforcement of patents more affordable.
“It will also be an important milestone in the continued development of the single market – a priority for the Irish presidency. Indeed, achieving a unified patent litigation system was a major priority of the April 2011 Single Market Act.”
The patents will be translated into three languages at no cost – English, French and German. There will, however, be a fee to translate into other languages but EU-based small and medium-sized enterprises, non-profit organisations, universities and public research organisations will be reimbursed.
Discussions of unitary patenting in Europe have been going on since the 1960s. So why has this taken so long? A spokesperson from the Department of Jobs, Enterprise and Innovation (DJEI) said: “The reasons for lack of progress can be summarised as difficulty getting agreement on the translation regime to apply to patents so that they would have validity across the EU. Given the need for unanimous agreement under the then existing EU treaty framework, the initiatives failed on each occasion. The need for unanimity has changed under the Lisbon Treaty with the ability to adopt a proposal under what is called ‘enhanced co-operation’. Under this procedure, an initiative can be considered if it is consistent with the EU Treaty and does not disadvantage any member state.”
