Last year we provided an introduction to and expectations for the Unitary Patent for the European Union. Terminology and timelines were presented.
When last we communicated on this topic, the foundations of the new European Union Unitary Patent were presented. Potential relevance includes savings of up to 80% for patent filings in European Union (EU) countries. The proposed unitary patent represents an addition to the two current paths of filing directly with an EU country or filing via the European Patent Office (EPO). Spain and Italy are unlikely to ratify the treaty, and the unitary patent would apply only to those EU countries which do ratify the treaty. Barring complications, the Unitary Patent option should be available after 13 countries ratify the Patent Court (Unified Patent Court Agreement). Estimated cost is $9,000 ($6,500 euro). This compares with over $50,000 for all 27 European Union countries today. Break-even will be roughly four countries (4 x $2,000).
Observers anticipate having ratification by at least 13 countries later this year. This would put the process on track for being able to choose the Unitary Patent option at the end of 2016. Other than Spain's and Italy's, no additional objections were expected.
Progress Thus Far:
There were concerns that Spain might legally block progress of the Unitary Patent. The Court of Justice of the European Union (CJEU) rejected Spain's challenges to the legality of the unitary patent and Unified Patent Court (UPC). Spain had argued that the regulations lacked the legal basis of article 118 of the Treaty of the Foundation of the European Union, and did not require Spanish translations. For ratifying countries / member states, there are currently seven (Austria, Belgium, Denmark, France, Malta, Luxembourg, and Sweden). While progress has been slow, the process is steadily moving ahead, so most observers are confident of success.
What's Left To Go:
With 13 as the threshold, proponents have six countries left before the Unitary Patent option is in effect. By treaty, ratification by Germany, France and the UK are required. In the UK, they have initiated the first steps of ratification. In Germany, they are drafting the changes to their law needed to enable ratification, expected this year.
A paramount practical consideration for applicants will be the costs of the process, which are largely unknown at this point. The EPO will determine renewal fees for the Unitary Patent. Several approximations have been published. Likely, they will equate to the current cost for five or six countries. An opt-out fee is still unspecified. The final (17th!) draft of the Rules is close to approval.
Concluding, European practitioners now anticipate a European Unitary Patent option to be available in the beginning of 2016. By mid-2015 we should have final draft Rules completed and fees set.
And as always, Please Spread the Word!
This is one example of how, here at MCR, we try to keep the community informed of the developing legal landscape. Please contact us for more information; and please pass this along to anyone you know who may be interested in intellectual property legal services. Author David Rardin may be contacted at [email protected] and 603.886.6100.
David A. Rardin, Esq., Member
Registered Patent Attorney