Update on the European Unitary Patent

The European Unitary Patent (UP) is unlikely to come into force until late 2015 or early 2016, as some hurdles remain to be cleared, including how to cut-up the fees pie. It may come as a surprise to some, however, that it is not necessarily the big incumbent patent offices who are resisting the new system. The head of the German Patent and Trade Marks Office (DPMA) actually supports and looks forward to the introduction of the new patent, as the attached interview published in World Intellectual Property Review reveals.

The EU will eventually replace the current European Patent (EP) which after grant by the European Patent Office (EPO) actually becomes a bundle of national patents in those countries in which the owner of the patent decides to ‘validate’ it. In particular the absence of validation steps (often requiring an expensive translation of the patent) and subsequent need to pay renewal fees at each national patent office where the patent is to remain in force, will make the UP attractive to users of the new system.

However, some national patent offices in Europe are still likely to thrive, in particular in those countries with substantial native R&D and technology leading companies. The DPMA and UK Patent Office are amongst this group. One reason is that UP applications will be processed and examined prior to grant by EPO as currently done with EPs. There are substantial examination backlogs, unlikely to reduce over the next 10 years, and opposition proceedings after grant are equally lengthy, which often means patents are not granted until many years after filing, perhaps even at a time where the underlying technology has changed.

The speed of grant, of patents issued by DPMA and the UK patent office, without compromising examination standards as to patentability of inventions, in particular means that innovators are able to take early action against alleged infringing parties. In France, where substantive examination is not performed before grant, grant is also swift. Noting that these markets are crucial for many technologies, some companies will not require Europe-wide protection to adequately protect their IP on a commercial relevant scale, and may ultimately save money in by-passing the UP altogether.