A New Step towards Unitary Patent System for EU

European Union Parliament, on 11^th of December, adopted two draft Regulations, for the creation of a unitary patent, clearing the way for the completion of an exclusive European Patent System with a unitary patent and a unified Patent Court.

The European patent with unitary effect in the 25 participating States is based on two Regulations, one creating the instrument, and the other on applicable language regime for the new patent. The European Patent Office (EPO) has been entrusted by 25 EU member states to deliver and administer unitary patents. The third element of the package is the creation of a unified patent litigation system set up under an international convention establishing the Unified Patent Court (UPC), a specialised court with a first and an appeal instance with exclusive jurisdiction concerning infringement and validity questions related to unitary patents.

The unitary patent - or "European patent with unitary effect" - is a European patent, granted by the EPO under the rules and procedures of the European Patent Convention, to which, upon request of the patent proprietor, unitary effect is given for the territory of the 25 Member States participating in the unitary patent scheme. The unitary patent will co-exist with national patents and with classical European patents. Patent proprietors will in future be able to choose between various combinations of classical European patents and unitary patents.

The Regulation on the unitary patent provides that the participating Member States will entrust the following tasks to the EPO:

1. Receiving and examining requests for unitary effect
2. Registering unitary effect
3. Publishing translations during the transitional period
4. Setting up and maintaining a new "Register for unitary patent protection"
               - containing entries on assignment, transfer, lapse, licensing, limitation or revocation of unitary patents
5. Collecting annual fees for unitary patents
6. Distributing part of the annual fees to the participating Member States
7. Administering a compensation scheme
               - reimbursement of translation costs (up to a ceiling) for certain applicants   filing applications in an official language of the European Union other than English, French or German

These new tasks consist in straightforward ex parte registration tasks carried out by the EPO on the basis of the internal rules of the EPO. Decisions of the EPO regarding unitary patent protection may be appealed to the Unified Patent Court. After grant of the European patent, there will in future be no translation requirement for unitary patents - once the transitional period (of up to 12 years) has expired.

EPO has also envisaged Patent translate, the EPO's machine translation programme developed together with Google, which offers free online access, for information purposes, to automatic machine translations of any European patent application and patent. By the end of 2014, machine translation of patents will be available for the languages of the 38 Member States of the European Patent Organisation, including the European Union's 27 Member States. Fourteen European languages are already covered. Only in case of dispute, at the request of a court or an alleged infringer, will the patent proprietor have to provide a full human translation into the relevant language.

Transitional measures are provided for during a period of up to 12 years, as follows:

• where the language of proceedings at the European Patent Office is French or German, the patent proprietor will have to provide a translation of the European patent into English;
• where the language of proceedings at the EPO is English, the patent proprietor will have to provide a translation of the European patent into any official language of the European Union.

Finally, a compensation scheme is provided for to reduce the costs for SMEs, natural persons, non-profit organisations, universities and public research organisations having their residence or principle place of business within a Member State of the European Union: where such applicants file applications in an official language of the European Union other than English, French or German, the costs of translating the application will be reimbursed (up to a ceiling).

The two Regulations will enter into force on the 20^th day following publication in the Official Journal of the European Union. They shall apply from 1 January 2014, or from the date of the entry into force of the Agreement on a Unified Patent Court, whichever is later.

Draft agreement on a Unified Patent Court and Draft Statute are available here