1. Overview

1.1 Existing Patent Protection

Currently, technical inventions may be protected in Europe by

  • national patents and
  • European patents.

National patents are granted by national patent offices (in Germany by the German Patent and Trademark Office). They usually require representation by local counsel and follow with regard to procurement, legal effects and enforcement as well as with regard to revocation and declaration of nullity the respective national law.

European patents are granted by the European Patent Office (EPO) on the basis of the Convention on the Grant of European Patents (EPC). They are granted in a centralized procurement procedure which is followed by a centralized opposition procedure before the EPO. After its grant a European patent dissolves into a bundle of national parts which have the same effect as national patents, i.e. enforcement, revocation and nullification follow the respective national patent law.

The EPC comprises at present 38 European states; ten of them are not member states of the European Union. These are, for example, Norway, Switzerland and Turkey. The applicant designates the states in which the European patent shall come into force upon its grant, i.e. in which states it shall be validated. There are different validation requirements in each contracting state, for example with regard to translations and costs. Also the renewal fees vary from state to state. The main advantage of the European patent is its uniform procurement and opposition procedure which has cost advantages in so far as only fees for attorneys and the patent office accrue once only. However, a European patent does not distinguish itself from national patents with regard to its enforcement.

1.2    Creation of the Unitary Patent

In order to provide a uniform enforcement, efforts were made over decades to create a patent which has a uniform effect within the whole European Union. The long way to the Unitary Patent with all its trials and tribulations is not to be discussed here in detail. Only two core issues shall be highlighted:

A stumbling block has always been the language issue. Under the EPC, the official languages for the procedure before the EPO are limited to three languages only (English, French and German), whereby different translation requirements exist in the contracting states. It has been a major demand that likewise there should be a minimum of translation requirements with regard to the Unitary Patent to be created.

A further obstacle has been the issue where the new EU patent courts should be located. In the European Union currently by far the most patent infringement proceedings are dealt with by the German courts.  Germany had no interest to impair its position by the creation of a new European patent court system.

A breakthrough was finally reached when, by the end of 2012, the Unitary Patent was created by way of the so called enhanced cooperation.

1.3    Legal Basis – The "Patent Package"

The Unified Patent Court system is based in essence on three pillars, the so called patent package:

  • the Unitary Patent Regulation ,
  • the Translation Regulation  and
  • the Agreement on the Unified Patent Court (AUPC).

The Unitary Patent is created by the Unitary Patent Regulation. The Translation Regulation deals with the language regime for this Unitary Patent. Unitary Patent Regulation and Translation Regulation came into force on 20 January 2013. However, both regulations shall apply only as of the date of entry into force of the AUPC.

The AUPC has the character of an international treaty. It is a so called special agreement in the meaning of art. 142 et seq. EPC and has been signed on 19 February 2013 by all EU member states with the exception of Spain and Poland. It will enter into force as soon as at least 13 member states have ratified the Agreement, among them the three member states with the highest number of European patents in force, i.e. Germany, the United Kingdom and France (art. 89 par. 1 AUPC).

This legislative regulation will be completed by additional rules and fee schedule

  • Uniform renewal fees applicable to the Unitary Patent have already been set by the EPO.
  • Rules on court fees and reimbursable expenses as well as  guidelines for their determination.
  • The fee structure of the Unified Patent Court is currently subject to a public consultation launched by the preparatory committee.

Uniform renewal fees applicable to the Unitary Patent have meanwhile been set by the decision of the select committee of the European Patent Office dated 24 June 2015. Future costs of applications for a Unitary Patent can thus be calculated. Thereby applicants received a basis for decisions on their future patent application strategy. With regard to the Rules of Procedure the 18th draft has been published on 10 July 2015; a final version will likely be adopted by the Preparatory Committee in October 2015.With regard to the fee structure of the Unified Patent Court the Preparatory Committee launched a public consultation.