Joff Wild

The European Patent Office will be in a position to grant the first EU unitary patents as soon as a deal on the new system is reached and then ratified by member states, EPO president Benoît Battistelli has said. Talking exclusively to IAM at the EPO Patent Information Conference currently taking place in Hamburg, Battistelli explained that the office has given itself a deadline of 1st January 2014 to be ready, although realistically, he said, it is unlikely that any final package will be ready for implementation for another two years. Once a deal is reached, it can only come into force when ratified by a minimum of 13 countries, including the UK, France and Germany. 

Battistelli’s words come at a time when there seems to be a growing conviction that a compromise on the role that the Court of Justice of the European Union will play in the unitary system could be reached by the year end; with both the European Parliament and the UK government – which have been at loggerheads over the issue - keen to find a solution. There is talk that the Cypriot government, which currently holds the EU presidency, has circulated a new version of the draft regulations, while some are also suggesting that the British have submitted their own proposals. Although no documents have been made public, it seems that the key to a deal will revolve around limiting the CJEU’s role to one that ensures that the principles underpinning the EU’s legal framework are being complied with, rather than giving it power to rule on issues of substantive patent law.

In terms of the way a patent is granted after the new system comes into place, nothing will change at the EPO, Battistelli confirmed, as awards will be made according to current criteria. At the end of the process, successful applicants will be able to designate EU-wide coverage (minus Spain and Italy, of course), just as they can designate individual European countries. Instead, the major issue still to be decided is the fee structure. There are two principles underpinning this, Battistelli stated: the unitary patent has to be self-financing, but at the same time if it is to be successful the fees cannot be set too high. The final decision on this will be made by a steering committee comprising representatives from the 25 member states that are participating in the project; they will base it on recommendations that Battistelli himself will make.

Proponents of the patent have stated that it will be a much cheaper option than the current system, with claims that it could save a patentee as much as 70% of the current amount it takes to get coverage across the 25 member states. Of course, as the fees have not yet been set, that has to be seen as an estimate. And, as Battistelli conceded, very few patentees actually request EU-wide protection at the moment – instead, the average number of countries designated is actually eight, with the average lifespan of a patent around nine to 10 years. But, he also pointed out, the EU patent is not just about saving on official fees, there will also substantial administration expense savings too as much current duplication will be eliminated. Companies may have a tendency to under-estimate how much these costs are, Battistelli stated.

One option that Battistelli is keen to explore is the possibility of differential fees – with SMEs paying less than larger entities. “I did it in France when I ran the national office there and they have been doing it in the US for a number of years,” he said. “I would like to look seriously at whether this is something we can do.” However, this may prove tricky to get through the steering committee. “We will need to get a large consensus both politically and legally,” Battistelli stated.

We talked about a lot more than the EU patent during the interview, so over the coming days look out for another instalment dealing with issues such as the office’s current relationship with its user communities and the member states of the European Patent Organisation - I’ll tell you why the president believes that the situation with both is very positive . He also reveals the role the office plays in developing soft European power across the world and what it is doing to combat the growing anti-patent sentiment there is in some parts of Europe.