By: AMY SALMELA
June 1 marked the start of a pivotal turning point in European patent law — the European Patent Office’s (EPO) establishment and launching of a Unified Patent Court (UPC).
The court, populated by judges from each EU nation, “will offer a uniform, specialized and efficient framework for patent litigation at a European level. It will hear both infringement and revocation actions. The Court will have exclusive jurisdiction in respect of European patents with unitary effect registered under the regulations (EU) No 1257 and 1260 / 2012 on the unitary patent protection as well as in respect of ‘classic’ European patents,” according to the UPC.
The new universal system was created to provide a streamlined and simplified process for IP and patent protection across Europe. In essence, it creates a level playing field, with a single patent granting procedure and a single patent court, replacing the need to apply for separate patents in each respective nation.
But what effects and/or implications does the new system pose for U.S. companies stateside, or companies and law firms dealing in intellectual property?
Unitary Patents — Background and Benefits
A continent-wide unitary patent has been in the works for more than a decade. According to the European Commission, it was in 2012 when various EU countries and the European Parliament agreed on a patent package comprising two regulations, and an agreement essentially creating the unitary patent and the creation of the UPC.
The aim of a unitary patent — then and now — was to reduce the complexity and cost of obtaining patents. “Granted European patents must be validated and maintained individually in each country where they take effect,” notes the EPO. “This can be a complex and potentially very costly process: validation requirements differ between countries and can lead to high direct and indirect costs, including translation costs, validation fees and associated representation costs, such as the attorney fees charged for the administration of the patent.”
The EPO continues: “The Unitary Patent removes the need for these complex and costly national validation procedures. The EPO acts as a one-stop-shop, allowing for a simple registration of a Unitary Patent for the territory of up to 25 countries.”
Currently, 17 countries have ratified and are on board with the unitary patent system: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden. The United Kingdom — part of the European Patent Convention (EPC), which formed the EPO — withdrew from the UPC in 2020 following Brexit. Since it is separate from the European Union, U.K. patents are still examined by EPO examiners.
The remaining EU countries – Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia, Croatia, Poland and Spain – have signed the Agreement on the Unified Patent Court (UPCA) but have not yet ratified the UPCA. These countries may ratify the agreement at any time.
Will EU Unitary Patents Have an Impact Stateside?
A major change to international patent law such as the unitary patent and UPC may pose a global influence on other countries, potentially carrying over to the United States:
More Legal Uniformity
The goal of creating a more uniform set of patent rules across the EU could make it easier for American businesses to understand and comply with EU patent laws, potentially reducing the risk of inadvertently infringing on European patents.
Increased Business Competition, Patent Litigation
The unitary patent will allow patent owners to enforce their rights in a single forum and under a single set of regulations that includes each UPC member country. That is certainly a benefit and cost savings to the patent owner, but it is also an advantage to competitors. Those who wish to invalidate a patent will have the same advantage of filing a single invalidation claim in a single forum that is governed by the regulations of the UPC and its member countries. The UPC gives competitors the opportunity to file a single claim where they would have, in the past, had to file multiple claims in different countries.
If an American business is sued for patent infringement in Europe, its intellectual property could potentially face a broader scrutiny – in terms of considerations of prior art. The business may need to re-evaluate its litigation strategies and consider whether it needs to take additional steps to protect its European patents. This could tilt the competitive landscape slightly in favor of European businesses.
Nonetheless, a unified patent system could also promote more cross-border business and make the EU a more attractive forum for patent litigation, which could be beneficial for businesses on both sides of the Atlantic.
Future International Patent Law Reform
Aside from whether the unitary patent system will succeed, the big question is whether it could serve as a model for similar international patent reform in the future. If the unitary patent system eventually proves effective, it could put pressure on the United States and other non-EU nations to work toward a harmonized global patent system – beyond the already existing Patent Cooperation Treaty.
This could, of course, benefit U.S. companies that operate globally by streamlining the patent process, enabling them to obtain such patents more quickly and at a lower cost than before. But it may also require changes to U.S. patent law to align with an international regime. Congress may resist ceding some sovereignty over existing American IP policy.
Will Unitary Patents Unify Global IP Law?
For now, the EU unitary patent is an experiment that could go in numerous directions. If successful, it may spur conversations about wider reforms. But substantial political barriers must be overcome for any global patent system to materialize.
The next few years will reveal how the EU model plays out in practice and whether it provides lessons that countries like the United States are willing to heed. It could potentially affect U.S. IP law and policy in both positive and negative ways, depending on Europe’s experience and whether the model gains international traction. For now, American companies and law firms must watch and wait to see what impacts may ultimately materialize.
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