Jack Ellis

After more than four decades of false starts, the European Union looks like it will finally get a unitary patent right. In a plenary debate this morning, the European Parliament voted in favour of implementing proposals for a unitary patent system that will cover 25 of the 27 EU member states. The vote follows a compromise deal agreed between the Council of Ministers and the legal affairs committee of the European Parliament late last month.

The proposal for a unitary patent right was approved by 484 votes to 164 with 35 abstentions; the language provisions were approved by 481 votes to 152 with 49 abstentions; and the creation of a unitary patent court was approved by 483 votes to 161, with 38 abstentions.

The treaty creating a unitary patent court will apply from 1st January 2014 – or, failing that, as soon as 13 signatory states including each of the UK, France and Germany have ratified it. The two other pieces of legislation that complete the package – one concerning the translation of unitary patents into different languages and the other the creation of the EU-wide patent right itself – will become effective once the patent court agreement is in force. Commissioner Michel Barnier said that he expects the first EU patents to be granted during the spring of 2014 at the earliest.

Raffaele Baldassarre MEP, who led discussions on the language regime for the new unitary patent, described the existing medley of national patent systems in the EU as “a tax on innovation”. The new system would grant a single patent valid throughout the 25 participating countries at a far lower cost, he said. The European Commission claims that a unitary patent could cost as little as €4,725, while IP owners are currently spending an average of around €36,000 to obtain patent rights for each member state. “At the moment it costs six times as much here than in the US or Japan,” Baldassarre added. What he did not say was that it is very unusual for any applicant for European patent protection currently to seek protection in all EU member states.

Baldassarre's own nation, Italy, and Spain effectively removed themselves from unitary patent negotiations because both countries felt that the planned language regime would put them at a disadvantage. Under the legislation approved today, EU patents will be available in English, French or German – while applications made in any other language will need to be accompanied by a translation into one of those three. “We hear again and again from China that we need to put our house in order – that we have a single market but no unitary patent in place,” said Klaus-Heiner Lehne MEP, who chairs the legal affairs committee of the European Parliament. “All I wish now is that those two countries do decide to join the 25 others on board so we do have a complete single market and patent system.” Earlier today, the Court of Justice of the European Union received an opinion from its Advocate General Yves Bot, recommending that it throws out challenges to the legality of the unitary patent system from Italy and Spain.

The long road to today’s parliamentary vote has seen extensive criticism of the proposals, not least from business. Operating companies have voiced concerns that NPEs will thrive under the geographically and linguistically divided unitary patent court. Last night, Ericsson, Nokia and BAE made an eleventh-hour plea calling on MEPs to reject the package, saying that the EU patent system programme as it stands “will harm innovation, competition and enterprise in Europe for years and decades to come” and “facilitates abusive behaviour by patent holders”. Patent lawyers, attorneys and judges have also heavily criticised the plans.

But the final legislative hurdle looks to have been cleared – and the unitary patent is well and truly on its way to becoming reality. Whether they like it or not, in-house IP departments now need to focus their efforts on preparing for the new system.