Unitary patent: companies and inventors must appropriate it

The promise holds in a few words. Protect your innovation across the European Union with one patent.

Much more than a step forward in intellectual property, in fact much is at stake for Europe.

At the political level, first of all, the introduction of the unitary patent, which is planned within a few months, will materialize almost 50 years of work and diplomatic exchanges between the members of the EU. In economic terms, this mechanism will therefore make it possible to give concrete form to the European Commission’s desire to ensure recovery and resilience in the EU through intellectual property (IP).

Because the numbers speak for themselves. According to a joint study by the European Patent Office (EPO) and the European Union Intellectual Property Office (EUIPO), IP-intensive industries account for nearly 45% of Europe’s GDP and directly contribute to the creation of nearly 30 % of all jobs. †

The introduction of the unitary patent, scheduled to take place in a few months’ time, will lead to nearly 50 years of work and diplomatic exchanges between EU Member States.

However, it must be recognized that too many companies, especially SMEs, are still lagging behind. The reason ? A patent system that is often considered too complex and expensive.

A semblance of unity

Admittedly, since 1973 the EPO has managed a centralized procedure for examining and granting patents at European level. But apart from the unity effect shown, this procedure actually consists in obtaining a large number of national patents. Because once the European patent has been granted by the EPO, a company will then have to validate it in one or more states that it has chosen from among the 38 signatory states of the European Patent Convention.

Of course, these procedures come with their share of disappointments. Firstly, in terms of costs. While some states require a full or partial translation of the technical documents related to the validation of a patent and the payment of fees, the holder must also ensure that his patent remains in force in any state where it takes effect by payment of an annual fee.

Worse, this system subjects companies to biased decisions. Since the European patent escapes the scrutiny of a single judge, it obliges its holder to defend it in as many local jurisdictions as states where it claims protection. In fact, there is legal and therefore economic uncertainty for companies.

Ultimately, however, the creation of a new legal institution should alleviate this problem. Known as the Unified Patent Jurisdiction (UPC), this is the legal side of the unitary patent and its job is to assess its validity and infringement throughout the territory of the European Union.

New system, new challenges

The advantage of this new system for companies is therefore twofold.

On the one hand, they will be able to access a single patent that has its effects in all Member States of the European Union that have ratified the agreement on the UPC – currently 17 states with two major absentees, nevertheless: the United States since its inception has left the EU and Spain whose ratification is not foreseen. On the other hand, they will have access to a single authority competent for the settlement of civil disputes, whose decisions are binding on all participating States.

Companies will have access to one patent from all member states of the European Union that have ratified the UPC Agreement.

Added to this simplicity of implementation is the cost reduction. In its Action Plan for Recovery and Resilience in the EU, the Commission indicated that obtaining a unitary patent and maintaining it for a standard duration would cost almost six times less than it does today.

It remains to be seen how the applicant will access this unitary patent?

The procedure is also simplified here. The company or the independent inventor will have to opt for an additional option to the classic European patent application. When it is granted, the applicant can therefore apply for the unitary effect of his patent and/or validate his patent in certain states under the current system without an additional fee.

More ambitious protection

The system devised in 1973 has left us a concrete legacy: more than 180,000 applications from all over the world submitted each year to the EPO, an increasing evolution of applications over the past ten years and patents whose quality is internationally recognized recognized.

The new system will provide us with simplicity of execution, lower costs and, in the end, better protection of our innovations. It is now up to our companies and our inventors to appropriate it.

Tribune co-signed by the National Company of Industrial Property Attorneys (CNCPI), the French Association of Industrial Property Specialists (ASPI), the Paris Bar and the National Bar Council (CNB).

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