27 December 2012

Unitary Patents: Good News from Europe

I must apologize for the long silence since my last post. The reason I have not been blogging recently is that I have been busy with litigation which will have important consequences not just for my client but for everybody who is party to an intellectual property infringement action in the UK.  If the case goes a certain way it will break new ground and will almost certainly have an impact outside as well as within this country. The hearing took place on 20 Dec 2012 and judgment has been reserved. I will tell you all about this case just as soon as I can.

Probably the most important news for inventors while I have been offline was the adoption by the European Parliament on 11 Dec 2012 of legislation for a unitary patent.    Readers who want an overview should read the European Parliament's press release and the welcome to the resolution by the European Patent Office.  For those who want more detail there are some good frequently asked questions.   Those who want to read the legislation for themselves will find the resolutions on the creation of the unitary patent, a unified patent court and ancillary legislation through these links.

The reason why this legislation is important is that it will become considerably cheaper and easier for inventors to obtain a single patent for all the member states of the European Union except Spain and Italy and to enforce that patent through a new patent court sitting in London, Paris and Munich which will have jurisdiction in all those countries.  

At present inventors have the choice of applying to the European Patent Office for a European patent designating one or more of those 25 countries or to each national intellectual property office for a national patent either directly or through the Patent Co-operation Treaty. Either way that is expensive costing an average of €36,000 according to the European Commission compared to a fraction of those costs for patent protection in the USA, China, Japan or South Korea.   If a European or national patent is infringed the patentee has to sue in every member state in which the infringement occurs which in common law countries, such as the UK and Ireland, can be very expensive indeed.

The new legislation should reduce the cost of patent prosecution - the application for a patent and its examination by the European or national patent office - from €36,000 to about €4,725 according to the European Commission, and the cost of enforcement from millions of pounds to tens of thousands of euro.   With the development of new IP insurance and litigation funding packages universities, small and medium enterprises and indeed individual inventors will find it easier to hold their own against multinational companies and other competitors.

The landscape has already changed considerably for such IP owners in England since Professor Kingston wrote "Enforcing Small Firms Patent Rights". The cost of enforcement was reduced dramatically by the new Patent County Court Rules and the introduction of a small claims track for intellectual property disputes.   It has also been possible to get authoritative advisory opinions from patent examiners on whether UK and European patents are valid and whether they have been infringed for £200 since 2005.  The unitary patent will begin to level the playing field internationally.

Over the next few weeks I will be writing a lot about the unitary patent and its likely impact for my clients.   If you wan to learn more about this topic give me a ring on +44 161 850 0080 or send me an an email through my contact page. You can also follow me on Facebook, Linkedin, twitter or Xing.

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