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A Unitary Patent in Europe is Becoming Reality
December 19, 2012

After more than 30 years of debate regarding the establishment of a unitary patent in Europe, 25 of the 27 member states of the European Union approved on December 11th laws to establish a unitary patent system. The European Union Council must now formally adopt the unitary patent. The agreement establishing the unitary patent process is expected to be signed on February 18, 2013 and will enter into force once thirteen European Union members, including France, Germany and the United Kingdom, have ratified the agreement. The first unitary patent is expected to be validated sometime in 2014.

Assuming that the agreement is ratified, a single European patent may be obtained from the European Patent Office. The unitary patent will be adjudicated by a unified court on the grounds of validity, infringement and non-infringement. Some of the perceived advantages of a unitary patent system are lower costs, more certainty as to future patent rights, and a fertile landscape for innovation and investment. For example, the European Parliament has asserted that a unitary patent may cost around $6,000 to procure compared to the current average cost of around $50,000. Additional cost savings may be achieved by having only to pay annuities for one unitary patent instead of the current system of paying annuities in each country in which the patent is validated. Regarding certainty of patent rights, there would be only one patent to adjudicate.

The unitary court system will have seats in Luxembourg and Paris, with sections established in London and Munich to handle certain technologies. Additional local and regional divisions will be established in member countries depending on certain criteria being fulfilled. There is a target date of January 1, 2014 for the unitary court system to be up and running. From January 1, 2014 to April 30, 2018, unitary patents will be subject to the jurisdiction of the unitary patent court system, unless the patent holder opts out and instead elects to have a national court of a member country have jurisdiction. After April 30, 2018, the patent holder will not have the option of opting out of jurisdiction from the unitary court system.

As mentioned previously, two members of the European Union, Italy and Spain, opted out of the unitary patent system, primarily because of which languages were designated for the unitary patent process. In all member countries, patent protection may still be obtained by filing directly in one or more national patent offices, or by obtaining a patent from the European Patent Office under the old patent system and then having the patent validated in a designated country. Under this system, the validated patent of a particular country is enforceable only in the courts of that country. This dual track process will provide Applicants with different options, for example allowing Applicants to file under the old system if the courts of an individual country are viewed as being more patent friendly than the unitary court.

If you have any questions or wish to discuss how the unitary patent system may impact your company, please contact your attorney at Brinks Gilson & Lione.

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This Client Alert is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. Brinks Gilson & Lione does not intend to create an attorney-client relationship by offering this information and review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have a legal matter requiring attention. For further information, please contact a Brinks Gilson & Lione lawyer.

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