Monday, 26 May 2014

Denmark votes in favor of unitary patent

In the Danish referendum last Sunday, Denmark has voted clearly in favor of the unitary patent.  The final results show that 60.45 percent voted for the unitary patent and the unified patent court, and 36.19 percent voted against. 

The full story is in the Danish newspaper Berlingske Tidende. Look for the words 'Enhedspatent' (unitary patent), 'patentdomstolen' (patent court) and 'ja' (yes).

Although it had previously been forecast that Denmark would vote in favor, supporters of the unitary patent court were nevertheless worried that the referendum could have resulted in a popularity contest for the current government. Apparently, they are not so popular. It seems votes against the new court came mainly from the Euro skeptic camp.

I wonder if this means that Denmark will try to join the Nordic regional court after all. Sweden, Lithuania, Latvia and Estonia have announced that they will from a regional division of the Unified Patent Court. Denmark now has the option to go alone, by establishing a local division or to join the Nordic court. As Denmark had been mentioned in this list before this referendum came up, I would guess that this option is now back on the table.

Wednesday, 21 May 2014

Possible solutions for the national prior rights problem in the unitary patent.

Yesterday, we found that national prior rights may surprisingly force the proprietor of a unitary patent to restrict his claims for all participating countries; not just for the country for which the national prior right is valid.

We consider three options the legislator could use to resolve this problem. We assume that this problem is considered serious enough to warrant solving and that the unitary regulations, agreement, and the EPC are not changed.

Allow conversion after revocation
Any state in which unitary patents are valid could introduce the possibility to convert a unitary patent to a national patent if the unitary patent is revoked in light of a national right.

Pro: This solution has a basis in the EPC. According to Article 135(1) and (2) EPC:
The central industrial property office of a designated Contracting State shall, at the request of (...) the proprietor of a European patent, apply the procedure for the grant of a national patent in the following circumstances: (...)   in such other cases as are provided for by the national law, in which the European patent application is (...) revoked under this Convention.

It seems that this solution would be fit in the existing legal framework without any problems.

Con: All participating member states should provide for this possibility in their national law. Furthermore, a proprietor who is in this situation has to apply for a national grant quickly and in many countries.

Allow partial revocation of a unitary patent
The rules of procedure for the UPC could be modified to allow a court to revoke a unitary patent in part. These rules are not final yet, so such modification can still be made.

Pro: For proprietors this solution would be easy. At the UPC claims can be defended specific for each country, depending on the national prior rights that may exist there. If the patent falls for some countries, infringement may still be found for the remaining countries.

Con: This solution would violate the unity of the unitary patent. According to regulation 1257, the unitary patent may only be revoked in respect of all the participating Member States.

Moreover, the proprietor cannot amend his claims differently for countries which have a prior right than for other countries. This would probably mean that he will lose a country with a prior right, since amending would mean losing scope in all other countries.

Declare a unitary patent non-enforceable for some countries
The rules of procedure for the UPC could be modified so that a court cannot revoke the unitary patent  for a national prior right, yet may declare the unitary prior right unenforceable in that country.

Pro: This solution does not seem to violate the literal wording of the regulations. Moreover, this problem can be fixed in one location (the UPC rules). This solution does not require action of the proprietor in all countries. 

Con: Although, I do not see which article this solution violates, it still seems to violate the spirit of the unitary patent. Moreover, it has the same problem as the previous solution: The proprietor cannot amend freely.

My guess would be that, if this problem is addressed, it will be according to the first solution.

Conversion has the advantage that is does not require any legal contortions. It provides the greatest security and freedom for patent holders. It also seems to be only solution in which the proprietor can salvage his patent for the countries with a prior right, without loosing scope in the other countries. It shifts the burden of solving this problem away from the EU and the UPC to national law though.

Tuesday, 20 May 2014

National prior rights against a unitary patent

One of the known problems with the unitary patent is its relation to national prior rights. We will explain this situation with an example.

For example, suppose company A files a national patent application NL1 disclosing an invention A only in the Netherlands. Later, company B files a European patent application EP1 at the EPO claiming A and A+B; no priority is claimed. NL1 is validly published by the Dutch patent office after B's filing.

Application NL1 is a national prior right against EP1. It is only valid for novelty.

What will happen to the European application of company B?

Monday, 12 May 2014

France shows up at EU Unitary ratification progress page

France is listed as ratified on the Unitary patent  ratification progress page of the EU. I take this to mean that France has completed the final step of depositing their instrument of ratification. After Austria, France is the second country to be listed as ratified by the EU.

I'm expecting Belgium, and Malta to show up on this page as well. But it hasn't happened yet.

Wednesday, 7 May 2014

EPO board issues a statement on the Unitary Patent and Unified Patent Court.

The Economic and Scientific Advisory Board (ESAB) of the EPO has issued a statement on the Unitary Patent and Unified Patent Court.

The statement is generally positive, and points out a number of advantages of the new system. According to the Board:

Benefits of the unitary patent include:
  • Administrative simplification of patenting in Europe, 
  • Potential for saving costs, including validation, translation, and post-grant administration costs, 
  • Geographic extension of patent protection. 
 Benefits of the unified patent court include:
  • Reduction in the high cost of enforcement for firms that validate in many or all member states
  • Developing harmonized and consistent jurisprudence throughout the territory of the member states

Concerns include
  • Unitary patent renewal fees and the costs related to litigation before the Unified Patent Court
  • Increased complexity due to the additional tier added to the patent system
  • Non-Practising Entities may become more active in Europe

The findings of the Board are based on a workshop they organized in December 2013, and a study they commissioned to Europe Economics.

Monday, 5 May 2014

Swedish parliament considering unitary patent bill

According to the Swedish patent and registration office, Swedish parliament are considering a bill to adopt the unitary patent system, including the unified patent court.  According to  Rachel Bateman of D Young & Co, the bill should also approve the regional court that Sweden is to form together with Lithuania, Latvia and Estonia (but without Denmark).

Thursday, 1 May 2014

Ratification law of unitary patent passes Belgium Parlement

Belgium parliament has accepted the ratification law for the unitary patent.

Last March the Belgium senate approved a "Wetsontwerp houdende instemming met de Overeenkomst betreffende het eengemaakt octrooigerecht, gedaan te Brussel op 19 februari 2013". (Proposal of law containing agreement with the Agreement on a Unified Patent Court, done at Brussels on February 19, 2013).

Now the law has also passed the House of Representative, on April 23, 2014. A few formal steps still need to be taken before we have full ratification. First, the law has to pass the symbolic stage of signing by the King of Belgium before going into effect. After that the instruments of ratification shall be deposited with the General Secretariat of the Council of the European Union.

We will be keeping an eye on the EU ratification progress to see when it shows up.

It may take some time though. Two month ago, we reported that Malta's Parliament appeared to have completed the ratification progress. But it seems that the ratification has not yet been posted to the EU.