The European Unitary Patent: Solution or Confusion?

Several decades after the first attempts to create a single patent system in Europe, national ministers signed an agreement last December to create the so called “European Unitary Patent”. Inspite of being a largely overdue and necessary move, legal experts have raised several important concerns about its legal certainty and fairness. The question is whether the new system will really be an effective and legitimate solution to the costly and fragmented situation Europe has lived for far too long.

The agreement reached in December 2012, and recently signed by member states (still pending of ratification) creates a unitary patent system closely related to the European Union, but outside it. 25 out of 27 EU members will form part of it; whereas Italy and Spain will not.

For those like me who believe that a well-functining, cost-efficient and fair patent system is a necessary condition for competitiveness and innovation, these are in principle good news. “In principle” is here an important remark, because it is far from clear whether the system that has been agreed will be able to deliver this.

Naturally, the signature of the agreement has generated much expectation around European business, which have for very long complained about the high costs and legal complexity of the current fragmented state of affairs in European patenting. Just to remind the reader, the European Union has successfully created single European legal frameworks for other intellectual property rights, like European designs and European trademarks, managed by the EU agency OHIM. But when it comes to patents, it is the non-EU body European Patent Office, which manages the file procedures of bundles of national patents. These procedures are expensive and time-consuming, as it is the language and the law of different countries that define what firms can patent. No surprise that European business has for long complained about the unnecessary complexity and costs of such processes, and stated their wish for a single patent that is valid for the entire EU.

However, the high-level legal experts from the Max Planck institute in Germany have expressed openly twelve reasons for concern about the recent agreement for the unitary patent. One of their main points is that it will create even more fragmentation because the new system is in reality an addition to the already existing systems (national, those already managed by the EPO, and the new unitary one) and because it will proliferate the courts that deal with those respective systems. A second set of main points has to do with the fairness of the system, which does not enough to prevent discriminatory and disfunctional practices. And thirdly, the new system lacks legal certainty due to the unclear legal nature of the patent (is it EU-law, international law, or a different sui generis type of law?).

The political fate of the agreement on the unitary patent is a risky issue, as ratification is still pending national parliaments’ approvals. For this reason Michel Barnier Commissioner speech two days ago (feb 18th, 2012), pointed out at the need to communicate to the members of national parliaments about the benefits of the agreement in place.

As I have written in the past, the reforms in the EU have been extremely difficult and slow when comparing the EU to the US reform processes. However, the most important thing to understand when discussing these matters is that the legitimacy of the European patent system will largely depend on its effectiveness, namely on its ability to generate real, cost-efficient and balanced solutions for the European economy and society securing fair competition and stimulating innovation.

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