Unitary European Patent – so Close, yet so Far?

Patent protection is very important for technological development. Despite the rules on free competition it provides a monopoly on the invention in the market for a certain period of time in exchange for the disclosure of the invention. The protection of patents and intellectual property in general has a long history.

Somewhat shorter, yet still long, is the history of efforts to make patent protection in the EU market uniform. Although in Europe the European Patent is available, which is granted by the European Patent Office, such patent does not have a unitary effect across the entire EU. Rather, it forms a bundle of national patents, which share only the mentioned grant procedure. Generally speaking, the regulations of patent protection are similar in Europe, yet different enough to make it possible to adopt different decisions on the same issues in different countries. Even when in different countries the competent authorities adopt the same decisions, the holder of the patent protecting the same invention has to seek protection in each country separately. Both have a negative effect on the functioning of the single European market.

The efforts to set up a system that would enable unitary protection – on the basis of a patent with unitary effect on one side, and by establishing a unitary patent court on the other side – in the territory of the European Union or at least in a large part of it have come very far already, so far that according to the forecasts of the well-informed the system should have been working by now. However, it is still not working and there is currently no date of its announced implementation. This is due to several reasons.

One of the numerous documents that were adopted for setting up the unitary patent system is the Agreement on Unified Patent Court. Slovenia ratified the agreement last September, however, in order for it to come into effect, it has to be ratified and the ratification has to be notified by at least 13 signatory countries, including Germany, France and the United Kingdom. France has already fulfilled this, however it got stuck with the other two main players – Germany and the United Kingdom.

In Germany, the agreement is currently being examined by the German Federal Constitutional Court, on the initiative of a private individual who alleges that the agreement contradicts the German constitution. The German Constitutional Court has called on the German federal president to suspend the actions that are necessary for completing the ratification, which has already been confirmed by the German parliament. The first responses of connoisseurs do not attribute significant chances of success to the initiative for constitutional review of the agreement, though the issue could still, at least timewise, additionally delay the setup of the unitary patent system. A much larger and more complex uncertainty is the participation of the United Kingdom in this system. Following the voting on Brexit, the entire system of the European Patent was again left to uncertainty and there were speculations on the failure of the system, which embeds an important role of the United Kingdom. Then the situation changed again this year, since despite the formal beginning of the Brexit procedure, the United Kingdom has expressed its intention to participate in the unitary patent system irrespective of Brexit. The United Kingdom has even adopted certain measures for this purpose (though the Agreement on Unified Patent Court has not been ratified yet).

As long as the United Kingdom remains an EU member, the issue is not problematic theoretically (however, it is problematic practically, as Brexit is a fact that is approaching fast and constitutes uncertainty in several fields). Its further possibilities of participation following its exit from the EU are uncertain as well. With proper political will (which is very unclear according to the existing negotiations on Brexit between the UK and the EU) both on the side of the United Kingdom as well as on the side of the EU Member States that could be achieved, however in no event without interventions in the currently outlined system.

According to the currently foreseen system, the central division of the court, which would decide on infringements and annulments of patents at first instance, should have its seats in Paris, London and Munich. In relation to the issue of Brexit, questions are being raised whether the seat of the court should be moved from London, where decisions on patents from the field of chemistry and pharmacy are to be adopted, to the territory of (another) EU country.

Although the seat of the court will be in the three cities stated-above, the departments of the court will also be located elsewhere. The countries participating in the system, including Slovenia, can decide to establish local divisions of the court in their country. According to the last published report of the inter-service working group for the unitary patent system to the Slovene government in March this year, Slovenia is currently favourable to establishing such local division. The inter-service working group sees advantages in establishing a local division for the Slovene economy and Slovene clients (such as accessibility, lower costs for clients, use of Slovene language in the procedure, Slovene judge in the panel, specialised court in the Republic of Slovenia, increase and maintenance of knowledge in the field of patents). According to the wording of the agreement itself, the seat of the centre for mediation and arbitration for patents is to be situated in Ljubljana (and Lisbon).

Therefore, there are still many uncertainties in relation to the establishment of the unitary patent system – whether the system will even start working and when, which countries will participate in it, and similar. However, hope remains, and even if the premises in London, which are ready to accommodate departments of the unified patent court, will remain empty and the UK will finish outside the EU and the unitary patent, the remaining EU members will have to consider such amendments to the agreement that would preserve the foreseen system to the largest possible extent.