Monday, 21 July 2014

Denmark joins unitary patent

Denmark has deposited its instrument of ratification with the Council of the European Union. 
That makes it the fifth state to fully ratify the Agreement on a Unified Patent Court. Previously, Austria, Belgium, France, and Sweden had also ratified the agreement.

The unitary patent system will become operation when 13 states including the United Kingdom, France, and Germany have ratified the agreement. At this point we can tell that a unitary patent (if it happens) will be valid at least in: Austria, Belgium, France, Sweden, Denmark, United Kingdom, and Germany.

Ratification of Denmark was uncertain for a while, as the country had to organize a referendum to clear to the way for ratification.

For some reason the ratification of Denmark has not appeared on the EU ratification page.

Monday, 14 July 2014

Is Hungary getting cold feet for unitary patent?

Although, Hungary has not yet ratified the critical Agreement on the Unified Patent Court, they were on course for it. Hungary has signed the agreement, is part of the EU unitary patent regulations, and will host one of the unified patent court's institutions, the Training Centre for Judges in Budapest. But now, Hungary apparently has some reservation about joining the unitary patent system, at least for just now.

Mr. Mihály Ficso, the Vice President for Legal Affairs of the IP office of Hungary, has given a presentation at the Premier Cercle's Unitary Patent & Unified Patent Court 2014. According to a report of Mark Richardson at Ipcopy, Hungary has a number of reservations:

- Ratification of Hungary will increase the number of valid patents in Hungary,
- Hungary may benefit from the unitary patent system without taking part in it,
- There are concerns about machine translations
- Renewal and court fees are not yet known


Mr. Ficso added that there is still a political will in Hungary to ratify the agreement. If I am not representing the Hungarian position fairly, I do apologize. Anybody who was actually at the presentation should feel free to correct me in the comments.


In part I can sympathize with the comments made by Mr. Ficso. All four reservations are true, yet I do not think they should block joining the unitary patent system.

The number of patent rights valid in Hungary will surely increase if the unitary patent is a success. This will hold for all participating countries though (perhaps excluding Germany). I'm not sure I agree with the underlying assumption that having a patent system that encourages not to protect your innovations would be an advantage for an economy.

Indeed, Hungary would benefit from the unitary patent system, even if it didn't take part in it. In fact the whole world will benefit from an improved European patent system. Also Hungarian companies could protect their innovation in a large part of Europe at low cost. Nevertheless, it would be even better for Hungarian companies if they could also protect their home market at the same time.

The concerns about machine translations are also valid. On the other hand, working with many languages is a reality of the patent profession. Machine translations have made life a lot easier. Although a human translation is (almost) always better, machine translations have advantages though. They are less costly, and are immediately available when needed. Should controversy arise, a human translation can always be made.

After the introduction of the London Agreement (of which Hungary is a member), translation requirements were greatly reduced. For example, a few years ago Hungary abolished the requirement that a full translation was needed. At present only the claims of a European patent need to be translation into Hungarian for validation.

As to the renewal fees. That we do not know their level is annoying. We only have Battistelli's enigmatic "They will be higher than many would hope, but lower than some might fear." On the other hand, Hungary takes part in the discussions regarding the level of these fees. If there are concerns as to their level, Hungary can influence the discussion.

I wish Mr. Ficso good luck in addressing these concerns, and I hope that in future I will be able to offer protection in Hungary to my clients as part of the unitary patent.

Monday, 7 July 2014

What happens to the Unitary patent if the UK exits the EU?

A commenter to a previous post on this blog asked the question: what if the UK would decide to leave the EU? 

The current British Prime Minister David Cameron promised a referendum to decide whether or not the United Kingdom should stay in the EU or exit it, the so-called brexit. The referendum would take place after the elections, somewhere in 2015.

Should an EU referendum really happen, than the outcome would be a gamble.  A referendum on the EU does not necessarily do well. I remember the 2005 referendum on a European Constitution in the Netherlands, for example. On the other hand, Denmark recently showed that an EU related referendum could work positive for the EU.

It is no question that should the UK leave the European Union that would be a great loss for the European economy.

Likewise, for the unitary patent, I would venture to say that a UK exit would be disastrous. That Spain and Italy, the fourth and fifth economy of the EU (by GDP according to Wikipedia), are not joining the unitary patent is bad enough. If the United Kingdom would be absent that would mean that a traditional minimal validation of the big three (Germany, France, United Kingdom) would no longer be covered by a unitary patent.

So it would be bad news for the unitary patent, if the UK would leave the EU. But could the unitary patent still enter into force?


I'm not sure if an UK exit would necessarily blow up the whole system. In fact, if the UK would stay in the EU, but not ratify the agreement, that would be worse, since that would imply that the unitary system would certainly not come into force. (Article 89 of the Agreement)

Below I'll assume for simplicity that an UK exit would be before the unitary patent system is in effect.

EU regulation 1257/2012

After an UK exit, the UK would no longer fall under the scope of article 3 of regulation 1257: A unitary patent would not have effect in the UK. Entry into force of the EU regulation only depends on the entry into force of the Agreement on a Unified Patent Court. The latter is determined by the Agreement, discussed below.

Note that even if the UK would leave the EU, the UK would continue to be a party to the European Patent Convention (EPC), thus one could obtain patent protection in the EU, through traditional national validation of a European patent.

Agreement on a Unified Patent Court

Entry into force of the agreement requires ratification of "the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place" (article 89 Agreement).  'Member states' refers to Member State of the European Union here. So this includes Spain and Italy, but after an exit would exclude the UK.

The question thus becomes which Member state had the highest number of European patents in effect in 2012, after Germany, and France (and the UK).  Google wouldn't give me the answer to that question unfortunately, but I would guess that it's the Netherlands. Although possibly, it could be Spain or Italy. (If it is Spain, the unitary patent is also out the window.)

The agreement is not EU legislation, but an international agreement made outside the EU. This is why Italy can join the unified patent court without joining the unitary patent. Nevertheless, I don't think the UK could still ratify this agreement, or continue to stay a member, if it were not a member state.

I couldn't find an explicit requirement for being a member state, but the Agreement seems to assume it throughout. For example, the agreement requires for signing that you are a member state. (Technically, this would not be a problem for the UK, as the UK have already signed the agreement.)

So I'll assume the UK would also leave this agreement in case of an EU exit. This would leave the Agreement in an odd state, as London is explicitly mentioned. Article 7 requires that there is a section of the central division in London. That would be difficult, if the United Kingdom weren't a member.



Conclusion

The unitary patent would lose a lot of luster if the UK drops out, but as far as I can tell, the unitary patent could still continue after an UK exit. Neither the regulation nor the agreement explicitly require that the UK participates.

The agreement may be salvaged as is, depending on which member state had that largest number of European patents in effect. Alternatively, these problems, as well as the reference to London,  may be resolved by amending the agreement. 

Friday, 4 July 2014

Belgium shows up on Ratification page

Belgium has shown up on the EU's ratification progress page for the unitary patent.  This bring the total number of countries that have fully completed the ratification page to 4: Austria, Belgium, France and Sweden.

The ratification law had passed the  House of Representative, on April 23, 2014. After that the King of Belgium needed to sign the law, and the instrument of  ratification needed to be deposited. That's all done now.