Unitary Patent

On 12 December 2012 the European Parliament voted, with 484 votes in favour and 164 votes against, to adopt the "European Unitary Patent". The European Unitary Patent should come into force in 2015/2016 when the necessary number of countries established in the agreement have ratified it.

The procedure of the European Unitary Patent provides that, instead of paying the translation fees and registration fees of the rights in each of the countries where the patent is to be protected, the inventor can ask the European Patent Office (EPO) for a unitary patent that will guarantee him protection in 25 member States.

There are 25 States party to the agreement (not all the 28 member States of the EU) because Croatia joined the EU only afterwards, and Spain and Italy did not agree to sign the treaty, although Italy has signed the agreement on the Unified Patent Court. This refusal to sign is because, despite protests from these two countries, the European parliament has confirmed the language system adopted by the European Patent based on the European Patent Convention (EPC) signed in 1973: this maintains the patents available (as language of filing, examination and grant) only in a choice of three EU languages (English, French and German).

In the opinion of those in agreement with this new title, adopting the European Unitary Patent will allow European small and medium enterprises to fight the United States and China on an equal footing. It has been claimed that simplifying the system will reduce translation costs to a sixth of what it was.

During the negotiations, conscious of the practically insurmountable difficulties of (also) adopting Italian, Italy wanted a procedure in English only, whereas Madrid requested the introduction of Spanish.

Spain maintained its position in defence of Spanish as one of the official languages of the European patent, underlining its influence on the Latin American markets which are interacting more and more with the European economy.

Because of this resistance to accept a system that, in practice, favours the (bigger) Companies of Germany, UK and France, to the detriment of the small and medium enterprises of Italy (and Spain), and also their respective consultancy offices, the Commission proposed, at the end of 2010, a "reinforced cooperation", accepted by 25 countries, to get round the Spanish and Italian veto. A compromise was thus found: the First Degree Court, chaired by a Frenchman, will be established in Paris, as will the Chamber responsible for patents in the field of electricity, telecommunications, building and public works. The Chamber competent for patents in mechanics will be in Munich (30 percent of applications expected), while for drugs and biotechnologies it will be in London (30 percent of applications). Luxembourg has been made the seat of the Patent Appeal Court. This is an important body, which should not however start functioning before 2015.

It should be noted that, according to an official study which indicated that the Unitary Patent would go against the interests of UK small and medium enterprises, initially the UK had decided not to participate in the European Unitary Patent. In order to persuade the UK, she was given a competent Chamber so that, to balance things up, Germany was also given one.

It should also be noted that, even if methods are adopted to make the decisions of the judges uniform, in practice the national justice system in the country where the Court or Chambers are based will certainly influence the method and reasoning that the judges will actually follow. On August 6 2013 Austria was the first country to ratify the agreement on the Unified Patent Court.

The French National Assembly ratified the agreement and the act was filed on March 14 2014. On 5 and 6 June 2014 the agreement was ratified by Sweden and Belgium respectively. From the date of this publication the Council of Europe will soon record the ratification by Great Britain (royal assent 14 May 2014), Malta and Denmark, where the popular referendum called for May 25 2014, as a consequence of the lack of majority in Parliament, saw the agreement approved with 62% of votes in favour.

In order for the Unitary Patent to come into effect, at least 13 member States of the European Union must ratify the agreement.


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