An Enhanced European Patent System: Unitary Patent Implementation
Current system of the European patent obtaining requires the patent be individually validated by each member state where the protection is sought. Such process is very complicated in re translations of the documents, it is time consuming and sometimes not accessible for small businesses owing to the high expenses. Proposed Unitary Patent system will simplify the following processes and steps.
European patent will be recognized in 25 Member States in one step
Currently, 25 Member states agreed on participation in new patent regulation (with the exception of Poland). Such system will allow getting a patent, which will be recognized and valid over the territory of all agreed member states by submitting only one application. Filing the application as well as examination of proposed patent will not change much, meaning that the owner of the invention shall submit the application to the EPO.
Costs
The three principle components of Unitary Patent cost are prosecution and validation, translation and renewal fees. The prosecution fee will remain the same and there will be no fee for validation process. Following the simplification of translation requirements, the translation fees will be reduced significantly. The proprietor of patent with unitary effect will have to pay only one annual fee.
EPO now has proposed a set of uniform renewal fees “True Top 4”. Thus, the classic European patent implies to be individually validated in each member state where the protection is sought. As a matter of fact, such requirement has been a major obstacle for extension of the patent for more than three or four member states so far, especially for SMEs.
Now True Top 4 proposal corresponds to a reduction of 78% of costs compared to the current situation. Giving a visual example, the cost of renewing unitary patent for the first ten years will be less than EUR 5000 and EUR 35 000 for the twenty-year period , while the current system suppose the payment of EUR 29 500 for ten years and around EUR 159 000 for the full twenty years.
Translation
After the patent is granted, there will be no requirements for translation in other languages. EPO together with Google has developed machine translation program with free online access for the purpose of automatic translation of any European patent application and patent into all European Union languages. Patent translate is now complete and covers translations between English and 31 other languages.
Only in case a dispute arises, patent proprietor has to provide full human translation into relevant language at the request of the court or an alleged infringer.
Unified Patent Court
The implementation of new extended patent policy also requires new institute for administration of jurisdiction on patent matters. The Court will be established after at least 13 MSs will have ratified the agreement on Unified Patent Court (including France, Germany and UK) Countries, which have not agreed to participate in unitary patent system still can be a parties to the UPC. The Court will have exclusive jurisdiction over the proceedings involving European patents with unitary effect and non-exclusive jurisdiction over the cases involving classic European patents (State can opt out).
However, the Unitary Patent and Unified Patent Court proposals are package, thus neither of them can enter into force until UPC Agreement minimum ratification requirements are satisfied. Currently (November 2015) there are 8 countries ratified the Agreement, the minimum required is 13.
Thus, the new patent system of the EU as a result of diligent and long-term work seems to present much more facilitated and accessible system of obtaining valid patent on the territory of all agreed member states. Certainly, it also leads off new issues and things to think of, as well as some sort of new problems. For example, the unitary patent system does not imply the rules on transformation from the unitary patent to the national one.
Another disadvantage is presented by the fact that the patent with unitary effect can be revoked by UPC for all the 25 member states at once. The ground for such revocation could be the documents challenging the novelty of invention or presentation of older but not published applications for the national level. In the system of classic European patent in such case there is an option to amend patent for each member state individually. And in case the patent is revoked on the territory of one member state, it does not impact its validity in other States.
However, it is difficult to make any conclusions for now and time will show whether such system will be effective in practice and how supranational patent system will co-exist with the national protections.
Maryia Breskaya
To find out more about patent system in the Baltic States, please contact our English speaking lawyers at info@gencs.eu.