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Monday, December 17, 2012

Europe Welcomes Unitary Patent Cost Savings but Worries about Enforcement

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After a decade of deliberation, Europe looks like it will finally have a unitary patent system that will reduce the costs of a patent. But the plan has caused concerns about the sudden speed toward approval and the way in which the patents will be enforced.

On Dec. 11, the European Parliament voted to agree on the Unitary Patent Regulation, which will create a system where a patent with unitary effect will cover 25 of the 27 European Union (EU) Member States (Spain and Italy have initiated a court challenge that is not expected to succeed). The new system will cut the costs of obtaining patent protection across the EU by reducing the requirement for translation of the patent text into the languages of each member state.

But the last few months have seen member states quarrelling over language in the regulation, the locations of new EU patent courts, and the constitutionality of the change.

A session on the new system was part of the BIO IP Committee Conference that I covered in November.  Attorney Hugh Goodfellow of Carpmaels & Ransford, London, outlined the concerns about the new system to the conference but quoted a member of the EU parliament who said the unitary patent system was a “political train which is not going to stop.”

Critics say the new court system will promote forum shopping for patentees and patent trolls. The good news for U.S. companies is that defendants who are domiciled outside of the EU will be tried in the court’s central division, which will have its seat in Paris with sections in London and Munich, while EU-based companies will be subject to the jurisdiction of the local and regional court divisions.

Assuming the regulations are formally adopted at the end of 2012, the treaty establishing the new unitary patent court is scheduled to be signed Feb. 18, 2013, and the first unitary patent would be issued by April 2014. There are things that need to be worked out on the way, and they will bear watching.

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