Will it be a case of going back to the future for Ireland?
On 11 December the European Parliament finally approved the
Unitary Patent Regulation, a language proposal and a plan for
a Unified European Patent Court. Following ratification by each
Member State it is likely that the new system will be operational
from 1 January 2014 and that the first unitary patents will issue
later that year.
This means that it will be possible to obtain automatic patent
protection in 25 Member States, but not in Italy or Spain who
have a challenge pending before the European Court of Justice
concerning the "enhanced co-operation" process used to
rush the proposals through and who still remain opposed to the
plan. Unitary patents will be made available in English, French and
German.
The new system is trumpeted by the media release from the European
parliament as costing a fraction of the current cost for equivalent
protection ( €4725 versus a current average of €36,000)
but it remains to be seen in practice whether the savings in the
application process will be this significant. In any event the
existing system of European Convention patents and national patents
will sit beside the new system and applicants will be able to
choose to seek protection under all or any of these systems.
The real fun however will be in the litigation system. Both
Unitary Patents and European Patents will be litigated in the
Unified Patent Court once the Regulation has been ratified by all
Member States. The Central Court will be based in Paris with a
specialised pharma/bio division in London and a
mechanical/automotive division in Munich. There will also be
regional and national chapters of the Unified Patent Court with a
mix of judges of appropriate technical speciality and nationality
sitting in each court.
You may well be asking yourself by this stage how the court system
will work in practice and that is great question. Essentially
infringement may be dealt with at central, regional or local
chapter level depending upon the location of the alleged infringer
or patent owner. If brought separately then revocation actions will
be litigated in the central courts with location dependant on the
technical nature of the patent. However if a defendant in an
infringement action counterclaims for revocation then the action
can be heard altogether in the court of the originating
proceedings.
Then there is the question of the law of infringement which under
the new "draft" version of the Regulations will be where
the patentee has its principal place of business or residence if in
the EU, or in all other cases will be German law. This has been
proposed as a means of avoiding oversight of substantive patent law
by the European Court of Justice, however we will see how this
works out in practice. Although the devil is certainly in the
detail, which has not been finalised yet, it is hard to believe
that the overriding idea was to make patent litigation in Europe
simpler.
For would be Irish patent litigants things are very likely to
become even trickier. Although no decision has been made as yet, it
looks as though the Irish Government in cost cutting mode may well
opt to be a member of a regional grouping instead of hosting a
local chapter of the Unified Patent Court. Rumour has it that the
grouping will be Ireland, Portugal and the UK and that the seat of
the court will be in London.
The question for Irish SME's is whether litigating in London,
even in the new court, could really be cheaper than the local
alternative? This is the case more particularly when the new courts
are likely to end up as the forum of choice for existing European
Patents as well as for Unitary Patents. It is not too
far-fetched to foresee a time when most patent law decisions
affecting Irish based litigants will be made by the Unified Patent
Court in London. A factor that will certainly concentrate
political minds in Dublin before the constitutional referendum
required to ratify Irish participation.
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