21. December 2012
New EU patent and Court
Background for the resolutions
When the European Patent Convention came into force in 1973, it established a system where an applicant may apply for a patent and complete the examination procedure with only one authority – the European Patent Office. The granted application must subsequently be validated and thus granted in every single European member state the applicant wishes to maintain patent rights. Any subsequent legal procedures are also held at a national level, and the applicant thus risks having to pursue lawsuits in all countries where the patent is valid.
This principle, based on a central examination, but with granted patents in many individual countries pertinent to their national court systems, is also known in other parts of the world. Many smaller countries do not have their own examination of patent applications, and accept legalization of patents from larger neighbors. Nevertheless the founders of the EPC had a much broader vision – of not only one patent application, but no validations – which was to be granted and enforced in all the member states, under the judicial system of one common court. Thus, one would be able to denote the EU as a single borderless marked. Now this vision is about to become reality. Changes in the European patent system December 11th 2012 the EU parliament approved the “EU patent package”, which comprises three new acts; regarding a unitary EU patent, with common languages, and a unified patent court system for enforcement thereof. The acts are expected to come into force on January 1, 2014, or after 13 member states including Great Britain, France and Germany have ratified them.
For trade marks there is already a unitary EU-mark in place, now the same will apply to patents. The EPO will continue to examine patent applications, but when they are approved one will, in addition to the present system of validation in the individual EPC member states, be able to have one unitary EU patent granted, which will be valid in almost the entire EU. Spain and Italy are currently outside the new regime, so in these countries applicants will have to validate in order to get patent protection.
In order to enforce the new EU patent, a unitary EU patent court will be established. It will comprise of two instances, a decentralized first instance and an appeals court. Decentralized first instances will be established in member states, or by groups of member states, when the case load is large enough to justify this. The decentralized courts will be multinational, and will all follow the same procedures and case law. Court cases in the decentralized courts will be held in the national languages, and be prosecuted by legal practitioners from EU member states. EP Attorneys may assist, and have the right to speak.
Applicants that are SME’s, universities, and non-profit organizations, from EU member states, will have their expenses for translation of the granted patents refunded. Practical consequences of the changes The main goals of establishing the new EU patent and court is to make it less expensive to apply for a patent, especially for SME’s in the EU, and to get a simple patent court system and predictable judicial practice to relate to, albeit with a decentralized structure. Additionally, this will hopefully enable the EU to become a more attractive single market for the rest of the world.
The new EU patent and patent court system will only apply to 25 of the 27 EU member states. Thus, Norway, together with Switzerland, Lichtenstein and Monaco as EPC members but not EU members remain outside, together with EU members Spain and Italy. It will still be possible to validate an approved for grant EPC application in individual EU member states, but this will most likely only be pertinent for EU patent members if one wish to establish patent rights in only a small number of countries, or specifically want to fall under the national courts, or in addition to a EU patent if patent is sought in one of the countries mentioned above. It will still be possible to apply for national patents directly in many EU member states, and these are of course also subject to national courts.
The EU estimates that the savings for patenting in the EU will be about 80%. Since Norway is not an EU member, only some of said savings will apply to Norwegian applicants. Specifically, the savings relating to refunds of translation costs will not apply. In addition, the present validation costs for anyone desiring to have an EPC application granted in Norway will remain. Norwegian applicants will of course also save by not having to validate in the EU member states, and on only paying one annuity for the EU patent – to the EPO – and not for each EU member state. For more information please see