Friday, 26 April 2013

The difference between Spain and Italy in the Unitary patent

Both Spain and Italy have a special position in the unitary patent. Spain is not a party to any of it, but Italy is in the middle.

Because it turned out to be too difficult to define the unitary patent in a way that satisfied all parties, the council of the EU decided to go on with the unitary patent with fewer countries, i.e., without Spain and Italy.
A decision "authorising enhanced cooperation in the area of the creation of unitary patent protection" was made on 10 March 2011.

This means that neither Spain nor Italy will be included in the territories in which a unitary patent gives protection.

One may still get protection in Spain and Italy, by conventional validation in those countries in addition to requesting unitary effect. In theory, assuming that all other EU countries ratify the unified patent court, one could cover all EU countries by paying three renewal fees: one central fee at the EPO for the unitary patent, one renewal fee in Italy and one in Spain. You will also need two translations.

With respect to the Unified Patent Court: Italy has signed that agreement but Spain did not.

As for Spain this means, that you need to go to a Spanish court to revoke the Spanish part of an EP bundle patent. Probably, you need to go there for infringement as well. (Could there be any cross-border action covering Spain? I doubt it, but I'm interested to hear any theories.).

Should Italy ratify the agreement then it will be subject to the UPC.

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