The EU Patent: Almost Here…But Still Years Away
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The EU Patent: Almost Here…But Still Years Away

Back in June, an agreement was reached establishing a unitary European Patent Court system, opening the door for a single European patent covering 25 nations.  But roadblocks occurring since have left applicants wondering if and when the EU patent will come into effect.  In this article, we’ll examine the possible timeline and discuss what applicants looking to file into Europe should consider now.

Summary

  • At this stage, no firm timetable exists for the introduction of the EU patent.
  • If the current proceedings end up at the European Court of Justice, expect significant additional delays.
  • If you validate widely (including in Spain and Italy) at the moment, you’ll still need to validate in certain countries even after the EU patent eventually comes into force.
  • Even if/when it does come into force, you’ll still need to validate in the “old” way for at least several years from now.

Comments

Those who’ve been following the recent developments in relation to the EU patent might have developed the impression that the “old” way of validation was about to expire. We think that’s premature.

Even if the recent roadblock is overcome without the European Court of Justice getting involved in the legalities of the EU patent, it will still be 2013 before the agreement can be signed and the ratification process begun by national parliaments.

It’s unlikely the agreement will formally come into force before early 2014, and it will be late 2014/early 2015 before the first European application designating the EU can be filed. Some of the earliest of these might be pushed through as test cases, but given that EPO allowance and grant processes take at least several months, it seems unlikely that even the most clearly patentable of these early cases will proceed to grant until mid-2016 or later.

Bear in mind that’s a best case scenario, given that examination delays can add years to the process.

Oh, and if – like a huge proportion of applicants – you use the PCT, you can add a further 18 months or so to the process, given the EU designation will only be available for PCT applications filed after it comes into effect.

Overall then, assuming nothing else gets in the way of the EU patent, it will likely be closer to the end of this decade before most applicants will even need to consider its impact.

Other Issues?

Spain and Italy haven’t signed up for the EU patent. While they may change their minds between now and the EU designation eventually coming into force, the way things presently stand, you’ll still need to separately validate (and translate) in those countries after grant, as you do now. Given that both countries are top-ten validation destinations, applicants that want coverage in either or both of them will need to validate in parallel to the EU patent process.

Also, the EU designation doesn’t cover the same territory as the EPC member states (i.e., those to which the current EP patent covers). An EP application can presently result in coverage in up to 38 countries. The EU designation covers only 25 countries (27 European Union countries, minus Spain and Italy). While additional countries will eventually sign up to become EU member states, it is likely to be a long time before an EU designation covers as many countries as can presently be reached via the European Patent Office.

So What Now?

In short, expect to continue validating for at least the next several years. So don’t put off considering whether there’s an easier, smarter or lower cost way of managing the process.

You can read more about the European validation process (as it currently stands) on our website.  We also offer a cost-effective way to validate in up to 38 countries with just one instruction; click here to learn more.

 

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