The United Kingdom government has announced its desire to negotiate a new settlement with our European partners leading up to a UK referendum with a simple question, should we be in, or out. The premise for such an approach, we are told, is that too many powers are centralised with the European Union that should, instead, be left to the remit of individual member states. Where there is no need for centralisation or harmonisation, such as employment or other social provisions, the law of the national states should prevail. Europe, we are told, is a means to an end, not an end in itself.
It is against this backdrop that we consider the proposals for an EU unitary patent. We have had a functioning European patent system (separate from the European Union and created by the European Patent Convention) for over 30 years. So what purpose is there for an EU unitary Patent? For what end purpose is this the means?
For a small or medium sized company, surely the test is whether the company can obtain protection for their innovation in the jurisdictions of interest to them, at a cost that is appropriate given the nature of their business. More widely, for the economy as a whole, the test may be whether the system promotes investment in innovation leading to increased GDP. But one way or another, the cost of obtaining protection must be considered.
In the analysis produced by European legislators, the cost of obtaining a unitary patent is compared to the cost of obtaining a patent under the existing European Patent Convention in all possible member states. However, most businesses do not seek such protection in all possible states and instead typically seek protection in only 4 or 5 countries. The test for these businesses is whether the unitary patent will be cheaper. As matters stand, I fear that it will not.
The bottom line is not yet settled and there is further work to be done before such a unitary patent exists. In the meantime, when setting prices for obtaining and maintaining protection, it is hoped that the legislators will bear in mind that the unitary patent must be a means to an end, not an end in itself.
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.