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EU unitary patent and Unified Patent Court

For ESP's page on this, see: http://endsoftwarepatents.org/unitary-patent

The European patent with unitary effect (hereafter unitary patent) and the Unified Patent Court are two separate but related proposals to make patents cheaper, litigation more profitable, and possibly install a complete court system with a pro-patent bias.

Procedural details and differences between the two

The unitary patent is an EU system, based on EU regulations 1257/2012 and 1260/2012, which is not in effect.

The Unified Patent Court is a proposed court based on an international agreement. All EU members states can become parties but the agreement does not involve the EU.

All of the involved EU countries will be participants in none or both agreements.

The Unified Patent Court is still being ratified by the agreeing member states. The unitary patent will only come into force after the Unified Patent Court Agreement does. The two regulations which enable the unitary patent were also the subject to two rejected actions on annulation introduced by Spain before the EU Court of Justice.

The new court may also have a pro-patent bias and thus increase the risk of software patents becoming enforceable. Unitary patents will be officially published in two languages: either English or another EU language. Speakers of other languages have increased risk of inadvertent infringement and increased costs of patent clearance searches, except in the UK where -unlike in the unitary patent system- presently also French and German language European patents are accepted.

This proposal took over from the Community Patent since the Lisbon Treaty and is often called the EU patent.[1][2] The term "European patent" refers to the system in place since 1973. A unitary patent is a type of European patent. The EPO must first grant the European patent, and then the applicant can request that it be given unitary effect.

As of 2015, the unitary patent has been rejected by Spain. The Unified Patent Court Agreement was not signed by by Croatia (who wasn't a member when it was signed), Poland and Spain.

The stated aim is to unify Europe's patent systems for reasons of efficiency.

Current status: ratifications

According to the agreement, for it to enter into force, the agreement on the Unified Patent Court has to be ratified by at least 13 member states including the United Kingdom, France and Germany.[3]

The application of the Unified Patent was challenged in Germany, but at 9th of July of 2021 the applications were rejected by the German Federal Constitutional Court[4]. An analysis from FFII in 2020 claimed that, due to the Brexit, Germany wouldn't be able to ratify the agreement anyway[5], but the Unified Patent Court doesn't seem to think that is the case[6], considering that, after this decision, "the way [has] now being cleared for Germany’s deposit of its ratification Bill", and "In addition to this, in order for the project to move into its final phase, a further two Signatory States must agree to be bound by the Protocol on Provisional Application."

Background: Community Patent (2000-2010)

The Community Patent was proposed by the European Commission in 2000 as "Rule of the Council" document number 2000/0177 (CNS), COM(2000)412 FR final.

On October 30th 2009, a new proposal was published: Axel Horns' overview.

Amendments to fix this

This proposal aims to make patent acquisition and litigation more efficient and more profitable for patent holders. With this goal, the software patent problems can't be fixed by minor improvements. To save software, we need amendments to exclude software from patentability or to shield software from patent litigation.

The amendments proposed by unitary-patent.eu apply both solutions: an exclusion in amendments 5 and 6, and a shield in amendment 8.

Unified Patent Court

Relation to the ECJ

According to European Commissioner Charlie McCreevy, May 18th 2006, the Community Patent would give the EU Court of Justice authority in interpreting the EPC:

an important feature of the proposed Community patent system is the accession of the Community to the EPC. By this, the convention becomes part of the Community acquis and subject to interpretation by the European Court of Justice (ECJ). The ECJ is not bound by the case law developed by the EPO and is free in its interpretation of the provisions of the EPC[7]

Consequence: a court of pro-software-patent judges

By creating a court with patent lawyers as judges, this proposal will lead to a set of rulings in favour of expanding patent law (giving a "maximal" interpretation of the law). This is how software patents came into existence in the USA via the creation of the CAFC in 1982.

Even if the European Court of Justice would have jurisdiction to review the new court's rulings, we might see the principle of settled expectations causing the European Court of Justice to follow the new court.

Related pages on ESP Wiki

External links

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References