Single patent takes another step forward

The international agreement establishing a Unified Patent Court (UPC) was signed by ministers in Brussels on Tuesday (19 February), heralding the uniform applicability of the new Single Patent law in the 24 countries signing up.

The new court will provide a single jurisdiction for patent disputes, avoiding the need to go to law in more than one country to defend a patent, preventing contradictory court rulings on the same issues and reducing the costs of patent litigation.

Following the signing of the agreement, the ratification process by national parliaments can now start, with at least 13 member states required to ratify the agreement for it to enter into force.

Of the three missing signatories, Bulgaria is expected to sign in the coming days once internal procedures have been completed, and Poland and Spain are not signing.

The treaty to form the Unified Patent Court is an important milestone says Nick Wallin, partner and patent attorney at the law firm Withers & Rogers in London. However, he says it is not clear when ratification by 13 countries, which must include the UK, France and Germany, will be achieved. “Spain and Italy have lodged objections, which remain unresolved, and Poland has already indicated that it is unwilling to ratify the treaty,” Wallin noted.

Assuming the plans go ahead, it is intended that the Unified Patent Court will be established by the time the first new pan-European patents become available, which is promised to be by April 2014. However, there are already mutterings that the time needed to establish the various institutions means this date will not be met.

Unified in name, but not in nature

Although it is Unified in the sense of representing a single jurisdiction, the court will be split by geography. A London-based Court will handle ‘chemical cases’ and ‘human necessities’, a Munich-based Court will handle ‘mechanical’ patents, with all other matters falling to the main court in Paris.

According Wallin, patent holders are starting to show interest in the new system. “The unified patent system promises to deliver broader geographical coverage in most cases and this is generating interest.” However, he said, not all patent holders stand to gain. “For companies that currently choose to validate their patents in several European countries, the arrival of a pan-European patent will definitely bring cost benefits. For those that currently just file in the UK, France and Germany, interest in the new pan-European patent is more muted.”

Wallin believes there is also a possibility that in some circumstances, the arrival of the pan-European patent could lead to unnecessary conflict, where previously there was none. For example, rival companies may presently be steering clear of each other by validating their patents in certain EU countries only. “In such cases, the advent of the unified patent system could increase the likelihood of commercial disputes,” Wallin said.

Small technology companies are intended to be the major beneficiaries of the Single Patent. Steve Bates, chief executive of the UK BioIndustry Association, which represents biotech firms said it is important that companies review their patenting strategies. “Whilst it will be some time before the full extent to which the new arrangements will deliver [the promised benefits], it is vital UK companies understand the implications of these changes for their IP,” Bates said.

The Unified Patent Court is the third element of the  overall patent package. Regulations establishing enhanced cooperation for unitary patent protection and arrangements for language translation of patents were adopted on 17 December 2012.