The problems with a unitary patent persist

For over 30 years, the EU has been planning a so-called unitary patent, in other words a patent with unitary effect. This “unitary effect” means that the patent will automatically be effective in all of the EU.

Today, we do have a European patent, but this patent is independent of the member states’ membership in the EU. Among others, Norway is a member state of the European Patent Convention, even though it is not a member of the EU.

Today, even if you get a European patent, it has to be validated individually in most of the member states where you want your patent to be valid. This means that if someone is copying your products, in other words is infringing on your rights, in a country where you have validated your European patent, you will have to sue them potentially in every country where they are infringing. Their reaction will of course be to counter-sue you, stating that your patent is invalid. They will, of course, do this in every country where you have sued them. So you risk having to handle up to 38 claims and counter-claims in different countries and different languages at the same time, just in Europe. And against each infringer.

In order to solve this problem, the EU has for a long time worked for the establishment of a “unitary patent”. This patent was supposed to be valid in all EU states automatically, and court cases about infringement or validity of the patent were supposed to be decided centrally by a EU Patent Court.

This was discussed back and forth for over 30 years, with seemingly little progress.

One of the problems discussed during these years was of course related to language. If we remember correctly, Spain and Italy were especially adamant about the patent having to be issued in their language for it to be valid in their countries. This was partly solved with the London Agreement of 2000. Many countries then abstained from their previous claims that the patent had to be translated. For instance, Sweden declared that the valid patent text was the one on file at the EPO. Any Swedish translation is only provided for orientation, and is not binding. However, the discordance around the language question still made it impossible for all EU countries to agree.

The question of letting EU courts decide about the validity of a national validation of a Europen patent seems, at least in the later years, to have had less weight than the question of language. Many EU member states appear to have become willing to let an EU court decide whether a national patent right is valid or not. This would, of course, be a limitation of the national courts’ jurisdiction.

At last, the states most concerned about the problem with potentially 38 claims and counterclaims within Europe decided that the problem could be treated as a voluntary supplement to EU membership. Thus, it would not be necessary for all EU states to agree. In the end, it was decided that at least 13 EU member states must ratify the agreement, and among those 13 it was necessary to include the three largest users of the EPC, namely France, Germany and the UK. Then the agreement about a common court could take effect for the states that had ratified the agreement. Other states could join later.

For several years now, this not-yet-founded unified court has been recruiting judges, teaching them and other employees about the new law that is about to take effect, and even renting offices where this judiciary is to be placed. According to the agreement, there should be three seats for the EU Patent Court: Paris (main seat), London (pharmacy and medicine) and Munich (mechanics).

Anyone who has read this far will see that London is mentioned among the seats stated in the agreement. In the meantime, we have experienced the Brexit. As London is specifically mentioned in the agreement, the whole agreement is on unsure ground.

Enough states have ratified the agreement now, for it to come into force. But let’s look at the crucial three mentioned in the agreement.

France has ratified the agreement and is on safe ground, it seems. The UK has ratified the agreement (after it pulled its Brexit card, but ok). Germany’s parliament adopted a law in 2017 that was supposed to ratify the agreement. After a constitutional complaint from what we understand to be an individual, the German constitutional court announced on the 20th March 2020 that the parliament’s ratification act of 2017 was not valid. Their decision had apparently purely formal grounds.

The act of the German parliament in 2017 was done at the end of a long sitting of the parliament, around 2-3 in the morning we believe, and there were only 35 representatives present (quite an impressive number at that time, we find). The German constitutional court agreed with the plaintiff’s argument that the ratification needed a 2/3 majority to be passed. And so the act of the 35 members present was not enough.

This decision by the German constitutional court was taken under dissence, by 5 against 3 judges. The opinion of the three dissenting judges is pretty interesting, and at least as well worth reading as the main decision. No doubt, there will be translations of both available soon.

Either way: the unitary patent project has been set back once again. OK, so the German parliament might vote on this again, maybe around mid-morning (after the Corona rules have been relieved), when there are more representatives around. But the agreement will still need to be re-worded. Among other things, the word “London” will have to be changed. We assume it will be replaced by “Firenze”?

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