Europe’s Unitary Patent system draws one step nearer…

19.11.2014

Yesterday, Advocate General Bot delivered two opinions giving the thumbs up to the proposed Unitary Patent system. This is a very significant step towards the development of a transnational system of enforcing patents in Europe (currently patents have to be enforced on a state-by-state basis).

Under the Unitary Patent system, which is being driven forward via the EU’s ‘Enhanced Co-operation’ procedure (in which, for the avoidance of doubt, the UK will be participating!) private parties will be able to apply for a European Patent with unitary effect throughout the participating member states. A related international agreement will establish a ‘Unified Patent Court’ where these Unitary Patents and, importantly, also all pre-existing ‘European Patents’ granted under existing European Patent Office procedures can be litigated. The system will have courts spread across Europe, with a central division split between London, Paris and Munich (and so presumably with its spiritual centre in the Champagne region of Northern France).

Spain had refused to take part in the enhanced cooperation procedure and launched legal challenges to the underpinnings of the proposed system. In political terms, Spain’s primary objection was that Unitary Patent system gives priority to three languages – English, French and German – over other official EU languages (including Spanish).

Advocate General Bot advises the European Court of Justice that the Spanish challenges should be rejected. A handy press release summarising the opinion in English is here. You can read the full text of the two Opinions here and here in Bulgarian, Spanish, Czech, Danish, German, Estonian, Greek, French, Italian, Latvian, Lithuanian, Hungarian, Maltese, Dutch, Portuguese, Romanian, Slovene, Finnish or Swedish . Unfortunately, speakers of the other five official languages (Polish, Croatian, Irish, Slovak and English) will have to wait a little longer for a full translation. But for those who speak English, Bristows’ dedicated Unified Patent Court microsite contains a more detailed discussion of the Opinion (in English!).

One has to wonder what impact the Unitary Patent and Unified Patent Court will have on competition law throughout Europe. The procedures adopted by the Unified Patent Court are certainly very different from those of the High Court (significantly less cross-examination, for example) and it will be interesting to find out how the Court will deal with competition defences such as FRAND related defences.