With the new Unitary Patent system due to be launched in 2017, patent attorney Rosie Hardy explains what it entails, how it sits alongside existing schemes, and the impact of possible Brexit
Deviating from the usual Patent of the Month, it might be timely to shed some light on the incoming Unitary Patent package for the European Union. The new Unitary Patent package promises many benefits to businesses in the rail sector.
When launched in 2017, the Unitary Patent package will allow businesses to protect innovation with a single patent that has a unitary effect across most of the European Union and any patent litigation will take place in a single, unified court. This single patent right will be called the Unitary Patent and the court will be known as the Unified Patent Court.
Given that the European Union has the largest market in the world and is responsible for 20 per cent of Gross World Product (GWP) covering 500 million people, a Unitary Patent will be a commercially-valuable monopoly. It will ring-fence innovation across the majority of the European Union for up to 20 years. With a Unitary Patent, a business will be able to control its innovation through sales and/or licensing agreements to build a market share and restrict its competitors.
Explaining the patent options
At present, there are three different types of patent protection available in Europe. A traditional European Patent provides a bundle of national patent rights in up to 38 different states across Europe and the wider region. National patents are available per state. Utility Models are a short-term type of patent available in certain states such as Germany and France. These patent rights can only be enforced in the National Patent Courts within each state. When the new system comes into effect, Unitary Patents will sit alongside these existing patent rights, thereby providing even greater flexibility.
The Unitary Patent will be available from the European Patent Office (EPO) using the current European patent application procedure. When the European Patent Office is ready to grant a patent, the owner will have to elect for a traditional European Patent and/or a new Unitary Patent. The election can be tailored to suit the required patent coverage and budget available. The proposed renewal fees and translation requirements for the Unitary Patent will mean it is a cheaper option for businesses that require patent protection in several European Union states. However, for businesses that only seek patent protection in two or three states, the traditional European Patent may be preferred. Depending on the key markets and location of competitors, a mixed approach may be sensible and professional advice should be sought in order to implement the correct strategy.
The Unified Patent Court
The Unified Patent Court is intended to provide a simpler and more cost-effective enforcement of patent rights throughout Europe. It will consider the infringement and validity of a Unitary Patent. For patent owners, this court will be able to award pan-European damages for patent infringement of a Unitary Patent. In direct contrast, competitors may be able to centrally attack a Unitary Patent. Subsequently, pan-European patent protection will be lost if the Unified Patent Court finds the Unitary Patent is invalid.
After a transitional period, the Unified Patent Court will also decide on the infringement and validity of traditional European Patents in Unitary Patent states. This means that the new system will have a direct effect on existing European patent rights and pending European patent applications. However, a patent owner can choose to opt-out if they still want their European Patents to be enforced in the National Courts of a specific state.
The UK is a key signatory to the new Unitary Patent package and will host a branch of the Unified Patent Court specialising in chemistry and pharmaceuticals. So, regardless of the Brexit debate, UK businesses should be confident in our participation in the new system and the benefits they can derive as a result. They should, therefore, start to prepare now to ensure they acquire the most appropriate patent protection and decide if they want their existing European Patents to be opted out of Unified Court System or not.
Rosie Hardy is a patent attorney at leading intellectual property firm, Withers & Rogers