European Unitary Patent Update

Last Major Obstacle to Unitary Patent and Unified Patent Court Removed as Europe’s Highest Court Rejects Italy and Spain’s Complaints

As previously mentioned on this blog, there are still a number of steps left before the European Unitary Patent and associated Unified Patent Court come into effect. Most of these steps are more or less formalities. Until recently, however, there was still the potential for the whole thing to be derailed by a decision of the Court of Justice of the European Union (CJEU) in response to Italy and Spain’s formal objections to the legal mechanisms that bring the Unitary Patent and Unified Patent Court into effect.

The CJEU has now issued its decision, completely rejecting Italy and Spain’s objections. The judgment is here.

Spain (without Italy) has apparently lodged two other objections, but these have not yet been made public. The perception within European IP circles is that these challenges have no more chance of succeeding than the ones previously submitted.

Assuming Spain’s remaining objections are similarly rejected by the CJEU in due course, all that remains is for implementing legislation to be passed in the various countries, and for rules and procedures to be finalized. At this rate, it is expected that the first Unitary Patent may issue as soon as mid-2014.

There are, of course, many other more practical issues for European patent applicants to consider. The costs, procedures, and advantages and disadvantages of using the Unitary Patent (and the associated Unified Patent Court) are still being established. As the picture becomes clearer later this year, we’ll report back with more analysis of what the Unitary Patent means for applicants, and whether using it is in fact the right commercial choice for everyone.

A couple of teasers:

  • There’s a long transition period during which the Unitary Patent will coexist with the current system. At the moment, it looks like the greatest flexibility will come from using the current (non-unitary) system of validation and opting out of the Unified Patent Court. Patentees can always opt in to the Unified Patent Court later if it becomes advantageous to do so (rumor: there may be an official fee associated with opting out).
  • Rumor has it that the cost of renewing a Unitary Patent may be as much as 7 or 8 times national renewal fees. This will be tempered by lower service charges (i.e., you only need to make one payment, not 7-8), but is still higher than originally anticipated (and hoped for).

If you have any questions, please post them in the comments and we’ll do our best to answer them.

For more information on this topic, check out the European unified patent archive of our blog.


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