European patents with unitary effect. Part 1
The entry into force of the patent system with unitary effect will involve the biggest change in the European patent system in the last 40 years.
At present, patents granted by the European Patent Office (“EPO”) must comply with a national validation procedure in the designated States, following which the owner obtains a set of national patents.
The current system means that the owner of a European patent must file lawsuits at the various national courts. This not only entails considerable expense it can, at times, lead to diverging decisions by the different national courts in relation to the same invention.
The new European patent system with unitary effect will provide uniform protection and will have equal effect in all participating Member States. The aim is to provide legal certainty and reduce the costs involved in protecting patents, with a view to encouraging investment in R+D+i.
A European patent with unitary effect may only be limited, transferred or revoked or lapse in respect of all the participating Member States, but it may be licensed for some those States.
Spain has decided not to form part of the new unitary patent system, because Spanish has been excluded as an official language and because it considers that the obligation to register patents in English, French or German is discriminatory.
This means that owners of patents that have been infringed or third parties that seek to contest the validity of a European patent in Spain must institute proceedings at the Spanish courts, which will apply the current legal framework.
However, once the new system comes into force, Spanish businesses will be able to own European patents with unitary effect and litigate at the Unified Patent Court (“UPC”).
Tomorrow we will publish the main characteristics of the new European patent system with unitary effect.
Garrigues Intellectual Property Department
