2012/07 > European patent with unitary effect and European Patent Court: Back to the beginning?

An invention can be protected in Europe by a national patent or European patent. After it is issued by the European Patent Office, a patent becomes effective in those 38 member states of the European Patent Convention chosen by the owner. In some countries the coming into effect is subject to the production of patent translations. Although, during the 9 months following grant, the European patent may be the subject of a centralized opposition procedure, after that it’s only at national level that validity and infringement issues can be considered.

For many years, the European authorities have been trying to create a single patent and a centralized authority to take decisions at Community level in order to prevent this fragmentation of procedures for the same patent at the national level. As Spain and Italy are opposed to a Community patent, the European Commission had proposed to create a “European patent with unitary effect” in the context of the enhanced cooperation procedure made ​​possible by the Treaty of Lisbon, and to link this proposal to that of a “European Patent Jurisdiction”. On this basis the Commission developed two draft Regulations defining, in particular, different procedural rules and a simplified regime for translations. On 29 June 2012, the Heads of State involved in this cooperation had reached an agreement on these two proposals: the Regulation on the European patent with unitary effect would be validated with deletion of three articles defining the acts which constitute infringement, and the headquarters of the Jurisdiction (“Central Division”) would be in Paris, but with divisions in London and Munich.

However, on 3 July the European Parliament finally refused to confirm the agreement, considering that the amendment to the Regulations on the Unitary Patent amounted to the amputation of three essential items, and that the distribution of the Jurisdiction over three sites was unnecessarily complex and open to forum shopping.

It is probable that the discussions will start again in the autumn.