France: The European Union Votes To Create A Unitary Patent System

The Parliament of the European Union, on December 11, 2012, voted for creating a Unitary Patent System (UPS) with a unitary effect in 25 European states.¹ Spain and Italy have so far opted out of the system but may choose to join at a later date. The aim is to provide lower costs and more effective protection through one single administrative step. The UPS has three pillars, each pillar with separate legislation and procedures: the first pillar creates an instrument to set up a unitary protection system; the second pillar provides the language regime to deliver and administer the unitary patent; and the third pillar focuses on setting up a Unified Patent Court (UPC) with exclusive jurisdiction concerning infringement and validity of the unitary patents.

The unitary patent will co-exist with national patents, as well as the classical European patent with which it shares a common legal basis and procedure for grant. The unitary patent differs only in the post-grant phase and will be treated as a single patent no longer requiring validation (including translations) in each European state. Patents will be made available in English, French, and German, a feature supporters of the UPS claim will reduce current patenting costs up to 80% by avoiding the need for additional translations into other languages. Under the UPS, the European Patent Office (EPO) serves the vital role of examining and administering the unitary patents, as it does for European patents, the key difference being the geographic extent of the legal protection that a patent affords, once it has been granted.

The UPC will consist of a Court of First Instance (CFI), a Court of Appeal and a Registry. The CFI will be comprised of a Central Division as well as local and regional divisions, with the Central Division split between Paris, London, and Munich. London will have jurisdiction over cases involving chemistry, metallurgy, pharmaceutical, and life sciences and human necessities while the Munich division will handle mechanical engineering, lighting, heating, weapons, and blasting. The seat of the Central Division in Paris, the location of the president's office and the administration, will also handle cases relating to performing operations, transportation, textiles and paper, fixed constructions, physics, and electricity. The local and regional divisions will have jurisdiction over certain infringement actions (and if they so choose, counterclaims for revocation) where the actual or threatened infringement takes place or where the defendant or one of the defendants has its residence or principal place of business. There will also be a single Court of Appeal based in Luxembourg.

The UPS will come into force the later of the date of ratification by thirteen European states including the UK, France, and Germany, or January 1, 2014.

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