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Loyer&Abello Paris Cabinet d'avocats propriété intellectuelle


26 July 2011

The concept of a unique patent for Europe is not new. The unitary european patent appeared in the Convention of Luxembourg on the community patent, which was signed on December, the 15th, 1975.


The goal of the unitary patent is to improve the competitiveness of European companies, to reduce financial costs (notably translation costs) and to stimulate innovation.


On the first hand, a plan on a new Court – the European and EU patents Court – was agreed and adopted on March the 23rd, 2009, which a substantial step forward.


Indeed, it is essential to provide for a unified system for dispute resolution mechanisms and the creation of a Court in charge of assessing the validity of patents and patent infringement, in order to establish a protection through unitary patents.


The European Court of Justice, which had been seized on July the 9th, 2009, under Article 218, paragraph 11 of the TFEU, gave a negative opinion on March, the 8th, 2011, thus blocking the project until the agreement is revised or the treaties modified.


The Court ruled that the agreement which would have created a united system of dispute resolution for patents was not compatible with the TEU and the TFEU because, as it deprived Courts of the Member States and the ECJ of their jurisdiction, “would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law”.


Yet, the Member States and the Commission kept on thinking about the way to follow after this negative opinion to have the unified system of dispute resolution adopted (Informal document of the Commission of 26 March 2011).


On the other hand, the unitary patent was never achieved because of persisting disagreements between Member States about translation issues.


However, in December 2010, 12 Member States launched an enhanced cooperation procedure to achieve the creation of a community patent, and were then joined by all other Member States, except Spain and Italy.


This procedure is currently ongoing. Following its seizure, the Commission presented two propositions of Regulation, dated 13 April 2011: the first one carries out the enhanced cooperation in the creation of protection by unitary patent, and the second one is about the applicable modalities for translation.


According to these propositions, European patent holders will be able to apply to the EPO for a registration of the unitary effect of their patent in the Register of Unitary patent. European patent with unitary effect will not be granted, transferred or invalidated and would disappear in all participating States at the same time.


The reduction of costs is expected.


Following the adoption of the “Competitiveness” general approach by the Council on 27 June 2011, it is now up to the European Parliament to give its approbation.


Jean-Baptiste THIBAUD


You can download our PDF here (French only).


Our previous articles on this matter:


Documents: (French only)

CJUE, avis 1/09 du 08 mars 2011, projet d’accord portant création d’une juridiction du brevet européen et du brevet communautaire

Décision du Conseil du 10 mars 2011 autorisant une coopération renforcée dans le domaine de la création d’une protection par brevet unitaire 

Proposition de règlement du Parlement européen et du Conseil du 13 avril 2011 mettant en oeuvre la coopération renforcée dans le domaine de la création d’une protection par brevet unitaire

Proposition de règlement du Conseil du 13 avril 2011 en ce qui concerne les modalités applicables en matière de traduction

Document informel de la Commission du 26 mai 2011- Solutions pour un système unifié de règlement des litiges en matière de brevets – la voie à suivre aprs l’avis 1/09 de la CJUE

Orientation générale du Conseil du 23 juin 2011