EU Patent / Unitary patent protection – final texts of the “patent package”
After political agreement had been reached on the patent package on December 11, 2012, the text of the three legal instruments were finalised. Regulation 1527/2012 on the creation of unitary patent protection and Regulation 1260/2012 on the translation arrangements were adopted on December 17, 2012 and published in the Official Journal L 361 of December 31, 2012.
The Agreement on a Unified Patent Court (UPC) was published as Council doc. 16351/12 of January 11, 2013. It is an updated and consecutively numbered version of the draft dated November 14, 2012 16222/12 containing mainly editorial amendments. According to Article 84(1), the Agreement is open for signature on February 19, 2013.
Surprisingly, the final text still contains in Article 33(2) the obligation of a regional division to refer, at the request of the defendant, an action for infringement to the central division if the infringement has occurred in the territories of three regional divisions. This provision which appeared in brackets in the draft may substantially impair the readiness of patentees to bring an action before a regional division.
The concentration on the solving the political questions has not improved the drafting of the text in respect of clarity and preciseness. This may be exemplified by the relation of the package with supplementary protection certificates. Article 33(1) in conjunction with Article 2(h) of the Agreement seems to create the exclusive competence for actions concerning the infringement and validity of supplementary protection certificates, regardless on which type of patent the certificate is based. Thus, in the case of a national patent as basis for the certificate, national courts would continue to be competent for litigation concerning the patent, whereas the UPC would be competent for litigation concerning the certificate. This can hardly have been intended.
The time schedule of the Commission for the implementation of the system, envisaging the entering into force of the Agreement and the application of the Regulations for April 1, 2014 seems not to be very realistic. The German Patent and Trademark Office announced that it envisages an entering into force from the year 2015. Remembering the periods between signature and entering into force of the EPC and the amendments to the EPC, even that may be considered optimistic.
Read the Regulations in OJ L 361, 31.12.2012, pp. 1 and 89 here.
Read the Agreement on the UPC here.
Reported by Rudolf Teschemacher