NAIP Patent Blog

by Charl Goussard, NAIP Legal Research

The day when a single patent can provide protection within all European Union (EU) countries is now closer. On the 14th of December 2009, ministers from the EU gathered for a meeting at the EU Competitiveness Council. The Council, tasked with ensuring the enhancement of competitiveness and growth in Europe, had on their agenda the future of the European Patent System (for a refresher on patents in Europe and the current state of the European Patent Office, please refer to our previous article - An Introduction to the European Patent System).

The major outcome of the meeting was an agreement of a draft regulation for what is known as the EU patent. In addition, conclusions were reached on the features of a proposed unified patent litigation system (court), arrangements regarding renewal fees and their distribution between national patent offices, and methods for improved collaboration between the national patent offices and the European Patent Office (EPO).

Key Points of the Proposed Regulations

1. One Patent, Full and Equal Protection
   The new system will introduce a single patent that provides equal protection throughout the entire EU territory (Link to webpage with countries in EU).
   
   Currently applicants must either apply at the various national patent offices in the individual European countries, or opt for a unified application process through the EPO.
   In the first method, separate applications need to be prosecuted for each individual country in which the applicant wishes to establish patent rights.
   
   When opting for a unified application process at the EPO, the prosecution stage up, until grant of the patent is unified. However, the applicant must still delegate his patents to national offices and have them verified in such offices, in order to enforce patent rights in those countries.
   
   One system with full and equal protection in the whole Euro-territory upon granting of the patent will make access to European markets easier, more cost effective and less risky. This change will particularly benefit Small and medium-Sized Enterprises (SME's).
   
   

   

   
   
   
2. A Single Examination and Granting Authority: The EPO
   The EPO is to play a central role in granting the EU patent–sole responsibility for examining and granting EU patents.
   
   The EPO already has the infrastructure and expertise to deal with European Applications. To ensure the most effective implementation of the new patent system, it is vital that the EPO be entrusted with the administrative procedures and that their mandate extended to the post-grant phase of, for instance, managing renewal fees and the patent registry.
   
   
   
3. A New Role and Revenue Stream for National Patent Offices
   All central intellectual property offices will have an essential role under the new system–giving support and advice to applicants. In turn, they will be compensated through the distribution of annual renewal fees.
   
   This provision ensures that local knowledge and good relationships with the national patent offices are not lost. Furthermore, applicants may make use of this extra service to obtain the best advice for their respective applications.
   
   
   
4. Multiple Filing Offices
   Applicants will still have a choice to file their applications at the national offices, if more convenient, or directly at the EPO.
   
   
   
5. Unified Application Fees
   To ensure fairness throughout the European Union, all filing offices will charge the same fee for filing a European patent.
   
   
   
6. The European Patent Convention As the Principal Legal Structure
   In order to avoid unnecessary confusion and delay, the EPC will remain as the principle legal structure governing the pre-grant process. The EPC received a major revision in 2000 (implemented in 2007) which now makes it a trusted system.
   
   
   
7. Individual National Patents Remain an Option
   The proposed regulation will not replace national laws relating to patents nor will it remove the applicant's right to apply for national patents.
   
   If applicants wish to only apply for a selected country or countries, they will be allowed to do so. Applicants will thus, with the new system, have an additional option, and not be limited to a unitary European patent.
   
   
   
8. One Patent Court for the EU
   Having one unified patent litigation system for the whole territory will be a major advantage. The new system will cut litigation cost and ensure quick and effective enforcement of the patent rights throughout the whole Euro-territory.

The Road Ahead

Next, the EU Parliament will deliberate the proposal. Compatibility of the draft regulation and current EU laws, language arrangements for the new EU patent system, and the collaboration between national patent offices and the EU patent office will probably be some of the key issues to be debated.

Taking into account that the revised European Patent Convention (EPC 2000 edition) took seven year to come into effect, one should not be panicking about sudden changes. At least there is hope on the horizon....

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