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Unitary patent: European Parliament votes to back package of measures on new framework

Out-Law News | 12 Dec 2012 | 2:43 pm | 2 min. read

The European Parliament has given its backing to a package of measures which will give businesses the chance to patent their inventions in 25 EU member states by filing a single application.

The new unitary patent framework will allow patent protection to be obtained across those areas for a fraction of the current cost, the Parliament and European Commission have said. 

Critics have said that the plans would not benefit business. Telecoms equipment maker Ericsson had urged MEPs (2-page / 322KB PDF) to vote against the measures which it said were "seriously flawed" and the UK Parliament's European Scrutiny Committee said that the plans could disadvantage small UK businesses.

The Parliament voted to approve two separate legislative proposals on the terms of unitary patent protection and the language regime to be adopted for the filing and processing of unitary patent applications. It also backed an international agreement agreed to by EU member states on the creation of a new unitary patent court (UPC) system.

The package of measures has still to be formally adopted by the Presidents of the European Parliament and Council of Ministers. In addition both of the regulations and the UPC agreement must be ratified by the UK, France and Germany at least 10 of the other participating EU countries.

The European Commission said that the package would "reduce fragmentation" and that the first unitary patent could be granted by April 2014.

"The figures speak for themselves," Michel Barnier, the EU Commissioner for the Internal Market, said in a statement. "In the United States, in 2011, 224 000 patents were granted, in China 172 000 while here in Europe only 62 000 European patents were delivered. One of the reasons for this difference is without a doubt the prohibitive cost and the complexity of obtaining patent protection throughout the single market."

"The new texts adopted open the way to simplified procedures and a reduction by one-seventh in the costs for our businesses of protecting their innovations in 25 EU countries," he added.

Agreement on the unitary patent proposals was formed after 25 EU member states worked under an enhanced co-operation mechanism to develop the plans. The Lisbon Treaty permits a faction of 9 or more EU countries to use the EU's processes and structures to make agreements that bind only those countries.

Spain and Italy have objected to the other member states' use of the enhanced co-operation mechanism and have asked the Court of Justice of the European Union (CJEU) to prevent the 25 nations pressing ahead with the plans as currently drafted.

In a legal opinion delivered yesterday, an adviser to the CJEU said that the arguments raised by the two countries, which includes that the proposed framework would unfairly discriminate against companies that do not work in German, English or French languages, should be dismissed. The CJEU is expected to rule on the issue next year.

Barnier said he hopes Spain and Italy join the new unitary patent regime "as soon as possible".

Europe-wide patent protection is possible at the moment by validating a patent registered with the European Patent Office (EPO) in each individual EU country. However, the Commission has claimed that this level of protection currently costs an average of €36,000 to obtain, compared with gaining patent protection in the US and China where the cost is approximately €2,000 and €600 respectively.

Under the unitary patent regime businesses that obtain a European patent from the EPO will be able to ask the body to give the protection "unitary effect", the Commission said.

Patent applications will be able to be filed in any language but they must be accompanied by a copy in either English, French or German, the European Parliament said. Patents granted would then be made available in one of the three languages. The Parliament said that SMEs would be reimbursed any translation costs, whilst renewal fees will also be set at a level that benefits smaller firms, it added.