Considerable uncertainty surrounding the fate of the new patent system proposed for Europe was finally put to rest on 11th December 2012 in two significant declarations from the institutions of the European Union.
First, it was announced that the European Parliament had voted to approve the legislation required to establish a new patent system providing a European patent having unitary effect. The new patent system has three separate pieces of implementing legislation, which relate to a unitary patent, a language regime, and a unified patent court. The unified patent court (which has been the subject of much political wrangling in recent months, but which has now been agreed upon) will be created by an international agreement among participating EU member states. This needs to be ratified by 13 member states, including France, Germany, and the UK, before it can enter into force.
Second, the Advocate General released his opinion on the legal challenge to the new patent system mounted by Spain and Italy. These countries had objected that the European Council had “misused its powers” by relying on the Enhanced Cooperation Procedure as the basis for the new patent system. The Enhanced Cooperation Procedure is an instrument of the European Union allowing nine or more member states to establish supranational agreements amongst themselves, avoiding the need to seek a consensus of all members of the union. The Advocate General rejected this view and argued that the council had been justified in using the procedure. While the Court Of Justice of the European Union (the CJEU) still has to rule formally on this issue next year, it is not expected to depart from the Advocate General’s opinion.
Although the officially expected date for the establishment of the unified patent court is 1st January 2014 (with the legislation on the unitary patent and associated translation entering into force at the same time), ratification of the required international agreement by the national member states could still be a hurdle. The Community Patent Convention (a predecessor to the proposed unitary Patent) failed to pass into law on two separate occasions (in 1975 and in 1989) due to too few member states ratifying the proposal. Similarly, the London Agreement (which reduces the burden of translations for European patent proprietors) took a full eight years from it being signed in 2000 until it was ratified in 2008. There is a view however that there is real political will in Europe this time round to ensure that the new patent system comes into force, meaning that the past failures can perhaps now be consigned to history.
Italy and Spain remain outside of the new patent system at present. These countries have the option of joining the new system at any time, but will no doubt wish to see what developments 2013 brings. More clarity on the proposals and the timeline for enactment is expected to emerge over the coming months.
More information on the package is available on the website of the European Patent Office.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.