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Delivering a unified patent system for Europe

The voting of two regulations concerning the unitary patent by the European Parliament and the Council in December 2012 is a historic decision, ending a 40-year EU patent stalemate. This single patent regulation is a watershed for the European business landscape, and in particular for SMEs, as it drastically cuts the costs of patenting and red tape beginning in 2014.

‘The overall aim is to simplify the procedure, as there will only be a one-stop shop – the EPO – in place for obtaining and maintaining the unitary patent,’ says Jean-Luc Gal, head of the Brussels bureau of the European Patent Office (EPO). ‘The new system will reduce the cost of the patent, since there will be no need to pay a patent attorney for validating and maintaining the patent in different EU Countries, no more translations to be filed, and the rate of the renewal fee for the unitary patent will be significantly lower than the cost corresponding to the maintenance of the national patents in the 25 participating Member States. As a result, patenting should be cheaper and more accessible to SMEs.’

The objective of the new regime is to create the so-called unitary patent that will allow patent protection to be obtained for 25 Member States (MSs) – all except for Italy and Spain, which are free to join at any time in the future – on the basis of a single application and without further administrative formalities. ‘The future unitary patent will be in fact a European patent for which the protection will be effective in all MSs participating in the enhanced cooperation,’ states Mr Gal. The patent package will enter into force either on 1 January 2014 or when 13 MSs ratify the Unified Patent Court (UPC) agreement, whichever is the latest.

The UPC will be competent to handle disputes concerning both future unitary patents and current traditional European patents. He hopes that the EPO might be able to grant the first unitary patent as early as April 2014, although this would require the smooth ratification of the agreement by the MSs.

Reaping the benefits of the unitary patent

Mr Gal explains that the lack of a unitary patent has adversely affected European SMEs: ‘Up to now, it has been quite difficult for an SME to issue protection for its inventions in many MSs, as the process was quite complex and costly. For example, once protection was obtained, as in the case of invention infringement by third parties, the SME had to pursue legal actions in the various countries where the infringement took place. With the new system, the SME will only have to file one complaint to the UPC for obtaining a decision which will be enforced on the territory of all the participating MSs.’

For European SMEs, the new regulation provides a number of benefits. First, SMEs will be able to cut costs and the process for legal enforcement of patent rights will be much more efficient. Second, strong patent protection in Europe will increase access to funds. Third, the unitary patent will serve as leverage, in the sense that a strong patent regime will allow companies to protect their inventions against competitors that can otherwise poach and exploit their ideas. Lastly, it will allow SMEs to rely on an EU patent instead of having to produce and sell inventions as products on the mass market, being primarily dependent on trade secrets and copyright.

Mr Gal stresses that there will be a significant cost reduction for SMEs. At present, the applicant has to pay EUR 4,045 for obtaining the patent (procedural fees), EUR 23,375 for translations, EUR 5,750 for local agents and EUR 2,987 for local patent office fees. Under the new system, the procedural fees will remain identical but the translation cost will be limited to only EUR 680. As a result, the total cost for validation would stand at EUR 13,462, as compared to the current cost of EUR 36,157.

The EPO aims to raise awareness of the patent system through its e-learning platform: ‘SMEs are, in many cases, not very knowledgeable about the European patent system, so such online courses are of particular interest.’

’The entry into force of the whole system will create an EU-wide one-stop shop for obtaining a patent in Europe,’ concludes Mr Gal.