The EU Patent – A Dream or a Nightmare?

There is no “EU patent” yet. A lot has been written about it, however, and it has even made the daily press. The reason for this is simple: it was promoted by the European Commission in December 2012 with “cost savings of up to 80%”. If it were to come into force, it would have the effect of fundamentally changing the patent system in Europe.

The coming into force of the EU Patent is up in the air

To get to the point: Up to now, it is unclear whether, when, and in which countries the EU patent will come into force. Only one Member State has ratified the “Agreement on a Unified Patent Court” so far, namely Austria. According to Art. 18(2), the EU Directive 1257/2012 will only apply as of the date on which the Agreement comes into effect. Art. 89(1) of the Agreement requires in turn ratification of the Agreement by at least 13 Member States, including the three countries that are the source of the most patent applications (Germany, France, and the United Kingdom).

This is not just a formality. Instead, the planned provisions on the EU Patent have sometimes been very heavily criticized. Fees for the EU patent have not yet been determined. There are legal concerns, and two complaints by Spain to the European Court of Justice have not yet been decided. And last but not least: in the United Kingdom, Prime Minister Cameron has even announced a referendum on whether to remain in the European Union. Do national parliaments want to ratify an agreement under these circumstances? Bearing in mind that according to the Agreement, one of the sections of the new EU patent court is intended to be seated in London, i. e. depending on the outcome of the referendum, the court could be located almost extraterritorially in a country that is soon to be non-EU.

Make sure you do not miss a thing: Order EU Patent Alerts!

Currently, there is therefore no need to worry about the EU patent yet. To ensure that you do not miss important news, you can rely on our “EU Patent Alerts” mailing list. It is used to send only notifications of really relevant progress on the introduction of the EU patent, for example ratification by other Member States or the adoption of the final version of the Rules of Procedure for court proceedings.

And of course you will also be notified if the project fails or undergoes fundamental changes. A simple email to patent@heuking.de with “EU-Patent Alert Deutsch” or “EU-Patent Alert English” in the subject line is sufficient.

We as patent lawyers of Heuking Kühn Lüer Wojtek are always observing current developments. Our foreign colleagues keep us informed of any ratification by the parliaments of the Member States. In January 2013 we reported on the most important elements of the planned EU patent in several domestic and foreign telephone conferences. In April 2013 we discussed the effects of the EU patent package on traditional EP patents during our seminar “Global Patent Updates”. We will continue to remain alert in the future and keep you informed.

“EU Patent” textbook is available now

We have also compiled the most important legal texts relating to the EU patent (EU Regulation 1257/2012, Agreement on a Unified Patent Court and the Draft Rules of Procedure) in our textbook “EU Patent”. This textbook also contains an overview in table form, which makes it more accessible. It is a valuable work aid for those who wish to handle the material themselves with reference to the primary texts. An English version is also available. The textbook is available immediately free of charge by sending an email to patent@heuking.de.

Further information available online

If you want to learn even more, for example in order to plan further ahead strategically: Our website www.heuking.de/en/ european-unitary-patent summarizes useful information on the planned EU patent. This page is continuously updated and extended.

Conclusion

There is no EU patent yet. The necessary ratifications by the Member States are still outstanding, and the project could still fail for a number of reasons. It is therefore very reasonable for companies not to deal with the topic for now, but rather to adopt a wait-and-see attitude until they find out that things are getting serious (for example via our EU Patent Alerts). If you want to find out more even at this stage, you can find all the information in our textbook and on the website www.heuking.de/en/european-unitary-patent.