The Unified EU Patent System - a good or bad idea?
After decades of debating, the EU Parliament and Council recently approved the creation of a Unitary Patent system - a single patent system for all of Europe (other than Spain and Italy). Up until now, an inventor seeing patent protection across Europe had to file a patent in each country, a very expensive process in terms of time and money.
The system will provide for the filing of a single patent that will provide patent protection across Europe. This is designed to cut the cost of obtaining patent protection in the EU by up to 80%, making it competitive with other countries. The system also calls for the creation of a single court. The court will allow patent holders to enforce their patents in a single court rather than in each country separately. The system is seen by many as a major breakthrough for business. But will it happen?
Implementing the new law will not take place immediately or at once, but will be carried out gradually. And little will happen before a court system is established. The agreement creating the EU-wide court is scheduled to be signed in February 2013 and then needs to be adopted by at least 13 contracting states (which must include the UK, France and Germany). This is not expected to happen before 2015.
The technology sector is concerned. The new EU-wide system, which will apply to existing and new patents, is expected to be most beneficial to patent trolls. Many large technology companies, who are often the target of troll lawsuits, have been opposed to the new system. These companies are faced with multiple lawsuits by patent holding companies seeking to monetise patent portfolios they have acquired. Allowing trolls to enforce their patents across Europe in a single court makes it less expensive to do so and will increase the number of patent-infringement actions.
Others claim that the uniform system will not reduce the cost of filing patents by anything near 80%. These opponents argue that the 80% cost reduction assumes that patent-seekers want pan-EU patent protection. Currently, this is not the case. Mst parties, especially the small and medium size businesses do not need this protection and only want protection in a few selectEUstates
It is not clear how this new system will be beneficial to large entities. Companies with valuable patents will most likely avoid the system as it is new and poses significant risks. With a central system comes a centralised system to challenge patent validity, meaning that a high-value patent can be found invalid across Europe in one hearing. So will large companies with valuable patents, who risk losing the patents for the whole of theEU, utilize the uniform system? Probably not. At least not initially.
In summary, the unified patent law is a good first step but there are problems with it. It is indeed important to reduce the cost of filing for EU-wide patent protection. Reducing the cost of enforcing a patent is important as well. However, if the risks of using the system outweigh the benefits, major players will not use it and it will remain a marginal system. Passing the law is just the beginning and much thought is required to make sure the system ends up being a success.