Wednesday, 17 February 2016

Germany starts ratification unified patent court

Things are speeding up for unitary patent in Germany

At last Germany has started the ratification of the Agreement on a unified patent court and thus also on the unitary patent. Although no-one doubted that Germany would eventually ratify, we had no news that the ratification was actually being prepared.

The ratification of Germany, France, and the United Kingdom is required before the unitary patent comes into effect. The United Kingdom had already started the ratification process, and France ratified already in 2014. Now also Germany has started the ratification process.

The Bundesjustizministerium (Federal Ministry of Justice) has published two law proposals. The first proposal is to ratify the unified patent court. The other one contains changes to the German patent law to accommodate the unitary patent. (Both are in German).

According to Juve (German), there are some concerns about how the proposed law regulates the prohibition on double patenting and the enforcement of decisions of the UPC. 

This step brings the unitary patent a lot closer. The unitary patent system enters into force on the first day of the fourth month after the 13th state, but including Germany and the United Kingdom, ratify the agreement. Currently, nine countries ratified. So to get an entry into force in 2016, we need Germany and the United Kingdom, plus two additional countries to finish ratification within the next half year. I'm not sure if that is possible, but a launch in early 2017 is certainly in the cards.

Photo "World Championship 2015 - sleddog race" by Ralf Κλενγε, via Flickr, under CC-By 2.0 license. 

Wednesday, 10 February 2016

Spain: Just English or either include Spanish

American films in Spain
 In an interview in World IP Review Ms. Garcia-Escudero the head of the Spanish patent office (OEPM) looks back on the negotiations for the unitary patent system:
“During the negotiations, one of our proposals was either to include the Spanish language or to have just one official language: English. They didn’t approve either offer, so we stayed out.”
The unitary patent favors the official languages of the EPO: English, German and French. Since the unitary patent is linked to the existing European patent, the unitary patent uses the same official languages. Spain, and also Italy, do not agree with this.

There may be some problems with the offers suggested by Spain. The EU cannot change the official languages of the EPO, since the European Patent Convention (EPC) is not an EU regulation but an international agreement. In fact some members of the EPC are not EU members. Changing the EPC, although possible, is a lengthy undertaking.

Realistically, one could at best desire that if a unitary patent is granted by EPO in a language different from English, then the proprietor should provide an English translation. However, a requirement like this has been adopted in the unitary patent. A request for unitary effect must include a full translation of the specification of the European patent into English if the language of the proceedings is French or German (Article 6(1)(a), Council regulation 1260/2012). Admittedly, this is only required during a transitional period (up to 12 years). To make things fair, you also have to submit a translation if the language of the proceedings was English, but in this case you can pick any official EU language you like.

After negotiations within the EU broke down, the EU used the--rarely used--possibility of 'enhanced cooperation' (Article 20 of the European Union Treaty). 'Enhanced' cooperation allows some member states to be excluded from the cooperation. In this case Spain and Italy who remained opposed to the new unitary patent were excluded. Italy has later rejoined the unitary patent system (while stressing that it remained opposed to the language regime).

Spain and (in part) Italy have complained about this with the  EU Court of Justice. The court agreed that the Spanish language was treated differently, but that this was allowable if it this was needed to get a cost efficient system.

The absence of Spain from the unitary patent will force us to “reflect on the importance of the Spanish language and technology”, according to Garcia-Escudero. The absence of Spain, the fifth EU economy by GDP, is indeed regrettable and will make the unitary patent a bit less attractive. In any case it will force a proprietor of a unitary patent to reflect if it wants to additionally validate the corresponding European patent in Spain (this is allowed).

Italy has since decided that a strong patent that is valid European wide is too important, and has decided to join the unitary patent system after all even though it is not happy with the languages. Hopefully, Spain will do the same someday.

Photo "American films in Spain" by Brian Snelson via Flickr under CC-BY 2.0 license