Now that most of the shouting is over and something of a resolution has been reached, we seem to have entered a quiet period in relation to the European unitary patent and unified patent court.
Spain and Italy’s earlier legal challenges were rejected in April by the Court of Justice of the European Union (CJEU). Spain still has some legal challenges being heard, but if they’re unsuccessful (opinion is split on the likely outcome), there’ll be nothing but details left to be worked out. That said, there are a huge number of details.
When might the Unitary Patent come into force?
The system cannot come into effect until at least 13 countries (including France, Germany and the UK) ratify the Agreement on a Unified Patent Court. Of the three compulsory members, France appears most likely to ratify first. The UK will likely be next. Germany’s elections later this year are likely to set back its ratification of the Agreement until well into next year at the earliest. It’s not clear that a further 10 countries are in any particular hurry to ratify – those with longer memories within the patent profession will recall that it took nearly a decade for the London Agreement to be ratified by sufficient signatories to bring it into force.
An interesting point arises in relation to ratification: the Agreement automatically comes into force once 13 countries (including France, Germany and the UK) ratify. A unitary patent granted at that time, however, will only have effect in the countries that had ratified at the time of grant. That means that only 13 countries are likely to initially be available. At that time, validation will need to be separately performed in other non-ratifying signatory countries, and separate renewals paid going forward. Countries that ratify later will not be added to the list of countries covered by a granted unitary patent. There will likely be a long transition – of perhaps several years – during which the specific countries covered by a unitary patent will need to carefully be checked when making validation decisions, and again when considering litigation.
This issue also further erodes the potential financial advantages for applicants wanting to validate broadly, at least until all (or nearly all) of the signatories have ratified the Agreement.
These are still being negotiated, but it’s presently expected that the cost of renewing a unitary patent will exceed the cost of renewing in 10 average countries. That’s a lot higher than initially expected and yet further erodes the cost advantage associated with reduced translations.
Yet another cost issue arises when an applicant wants protection in only a modest number of countries, especially when most of those are London Agreement countries with no translation requirements (or just a requirement that the claims be translated). As noted on Delta Patent’s unitary patents blog, taking the unitary patent route for a typical application being validated in just France, Germany and the UK gives more than a six-fold increase in translation costs. The likely high cost of unitary patent renewal fees makes this avenue increase the relative costs even more.
For those interested in the detail, an official website has been launched dedicated to the unified patent court: http://www.unified-patent-court.org/
It seems that the unitary patent is now inevitable. However, it is increasingly clear that whether to choose the unitary patent option will need careful case-by-case analysis, based on the applicant’s specific needs and objectives.