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Presently, national courts of each contracting state of the European Patent Convention decide on the infringement and validity of European patents in their own jurisdiction. This means that when a patent proprietor wishes to enforce their patent, or when a third party wishes to invalidate a European Patent once the opposition period has expired, the relevant actions must be taken on a country by country basis. This can not only be costly, but different decisions can be reached in different countries leading to a lack of legal certainty.
25 of the 28 European Union Member States signed an Agreement on 19th February 2013 to establish a European Unified Patent Court. Before the Unified Patent Court can be established, the Agreement must be ratified by 13 of the Member States party to the Agreement. The 13 member states must include the top 3 filing countries which are presently France, Germany and the UK. To date, Austria, Belgium, Denmark, France, Luxembourg, Malta and Sweden have ratified the Agreement.
The establishment of the Unified Patent Court (presently not expected before 2017) will enable the introduction of the Unitary Patent. The Unitary patent will be a single patent which will cover the 25 European Union Member States that are party to the Agreement, the participating countries. This may shortly increase to 26 European Union Member States, if Italy’s request for accession is approved.
A Unitary Patent will be optional when validating grant of a European Patent and will reduce the validation costs payable at grant in respect of the participating countries. Although transitional provisions will initially be in place enabling individual countries to request a translation into their national language, this requirement will be abolished in due course. Also, it will only be necessary to pay a single annual renewal fee, rather than renewal fees in respect of each participating country.
It is expected that the annual renewal fee will be the equivalent of the sum of the annual renewal fee payable in each of the top 4 filing countries, presently the UK, Germany, France and the Netherlands.
The European Unified Patent Court will enable the enforcement or revocation of the Unified Patent via a single Court for all participating countries. The decisions of the Court will have legal effect in all participating countries, reducing the burden and cost of enforcing rights in each of the participating countries.
It should be remembered that it will still be possible to obtain a patent in a particular country by filing a national patent application, such as a UK Patent Application, rather than using the European Patent system. The Unified Patents Court will not have competence over such national patent rights; the relevant national courts or patent authority will retain the authority to decide on issues of infringement and validity of such national patents.