It is a long way ... to a Unified Patent System

The prime objective of creating a unitary patent is to offer applicants a patent which is granted by one central organisation offering protection in a number of European states and enabling the patentees the possibility to elect for all legal proceedings to be heard before one central authority. Ideally this central authority would handle disputes stemming from any alleged infringement and applications for the revocation of a granted unitary patent. This leads to a reduction in costs for the patentee and for all parties who are in litigation with a patentee.

An anticipated corollary benefit of any such Unitary Patent system would be that with time the unitary patent jurisprudence would offer patentees and third parties, including alleged infringers alike, a more reliable uniform authority in the patents legal battlefield. A single specialised central patent court would render the outcome of patent disputes more predictable and offer certainty to the parties and to other courts seeking guidance in patent disputes, in particular, patent infringement proceedings. The aim would be to avoid the unhelpful conflict of parallel decisions issued by different courts in various jurisdictions, most of which lack the requisite expertise to assess the complex issues of patent litigation with any useful certitude. In theory the unitary patent is a winner recipee for all.

So far the Unitary Patent will become reality soon for 26 countries out of the 28 Member States of the European Union. The following cannot cover every detail but will outline some core issues in respect of how the unified patent systems has progressed over the past 50 years.

The Community Patent that never became true

As early as 1959, a first Draft Convention for a European Patent Law was envisaged and proposed to serve all applicants within the framework of the six Member States of the EEC (European Economic Community). The aim of this Draft was to offer a complete Patent Law applicable to the unified territory of the Member States of the EEC. The unified patent law was to exist alongside the national patent laws of the Member States [i]. The granted patent would have been a single patent unit valid in all countries of the EEC.

The unexpected success of the original idea stems from the perceptive request of the French government to enlarge the community patent zone so as to offer protection under a European Patent in countries which were not members of the EEC. For example to allow easier access to patent protection in England, France’s envied industrial neighbour, in Switzerland, France’s envied timekeeping centerpiece neighbour, and in the Principality of Monaco, France’s envied glamorous luxury goods neighbour. This approach presented a significant political challenge.

To overcome this hurdle, a Committee of Experts of the six Member States of the EEC (Belgium, Netherlands, Luxemburg, France, Italy and Germany), chaired by Kurt Haertel, President of the German Patent Office, opted to develop two parallel conventions.

  • The first convention would offer membership, in exchange for patent protection under the system, also to states which were not party to the EEC. The participating countries would have to agree to this convention as an intergovernmental agreement. A European Patent would be granted on the basis of a uniform substantive law on patents for invention. After grant, this European patent would result in a number of different national patents. Due to the nature of the different national patents a patent owner could decide to validate a patent in only a few countries of the participating states or abandon a patent in any of the states without losing the right in the other states. This agreement, after preparations in the so-called Munich Diplomatic Conference of 1973, eventually came into force in 1977 as the well-known European Patent Convention.
  • The second convention was to remain within the EEC's sphere of economic integration to the exclusion of all non-EEC Member States. It would combine the granted European bundle of patents for the EEC countries into a unitary Community patent, setting out the laws governing Community patents. This convention became the Luxembourg Community Patent Convention of 1975 [ii]. The Community Patent Convention envisaged a Community patent which shall have a unitary character. A Community Patent shall have equal effect throughout the territories to which this Convention applies and may only be granted, transferred, revoked or allowed to lapse in respect to the whole of such territories [iii]. As a consequence, it was envisaged that the Community Patent could be revoked by one central authority and in one instance and that patent infringement would be dealt with by another central authority at one instance with legal effect for all countries of the European Economic Community.  This was known as a bifurcated system, as it was the rule in the German Patent Law.


The Luxembourg Convention of 1975 was never ratified by all member states of the European Economic Community. Notwithstanding the simple absence of the apparent political challenge referred to above in respect of the French initiative, diverse political issues saw to it that the Luxembourg Convention would not see light of day. At a second Luxembourg Conference in 1989, the Article 30 of the draft Community Patent Law sought to sharpen the rules on the languages. After grant of a Community Patent, the submission of translations of the Community Patent in all languages of the European Community within a certain time would be mandatory in order to secure the validity of the Community Patent.

European Patent Litigation Agreement (EPLA)

In 1999 and 2000, member states of the European Patent Organisation set up a working group in intergovernmental conferences to propose an optional agreement for the creation of a central judicial system for European patents. In 2003, the working group presented a draft of a European Patent Litigation Agreement (EPLA). This would provide for the creation of a "European Patent Court" and for a "European Patent Court of Appeal" competent to decide on infringement relating to patents of EPO member states

In the context of arguments as to whether or not individual states which are members of the European Union should have the competence to institute such a system as a national initiative or whether the competence is exclusively in the hands of the European Union, the European Commission opted to assert its authority in the debates. The European Commission proposed, as a compromise, an integrated approach including EPLA elements in an EU-framework. This resulted, in 2008, in a mixed Agreement on the European and EU Patents Court (EEUPC) between EU, EU Member states, and EPC contracting states which are not EU Member States. In 2009, these agreements were put to the test. The EU Council requested an opinion of the Court of Justice of the EU (CJEU) on the compatibility of the EEUPC Agreement with the EU Treaties. In its decision of March 2011 the European Court of Justice stated that the envisaged agreement in its current state was not compatible with the Treaties.

The enhanced co-operation on a Unified Patent Court

In the meantime, anticipating this decision, twelve EU member states had commenced an initiative to establish a Unified Patent Court on the basis of an “enhanced cooperation”. They were joined later by another thirteen member states. To date, Italy and Spain are the only EU member states which have not joined. Their apparent reasoning is based on concerns regarding which languages which should apply.

Under the condition to be open for every member state of the European Union to join, the European Commission may allow a special agreement between a subset of a minimum of one-third of the EU member states. This special aggreement is called an enhanced co-operation and is allowed as a last resort when no common agreeement of all member states can be found. in the enhanced co-operation it is mandatory for the participating member states to co-operate within the structures of the EU.

On 14 December 2010 the European Commission proposed two enhanced co-operations: one on the creation of unitary patent protection and a second on the applicable translation arrangement. These proposals were adopted on 15 February 2011 by the European Parliament with a 70% majority.

The proposal for an enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements provides a post-grant transformation of European patents into "European patents with unitary effect". A patent proprietor can file request for unitary patent protection no later than one month after mention of the grant is published. The European patent with unitary effect builds on EPO language regime and requires no further translations unless legal dispute. It relies on that high quality machine translations for both applications and specifications will be available for free in all EU official languages in the very near future. 

The Unified Patent Court agreement was finally in a condition close to be accepted by all the members of the enhanced co-operation. Obviously the main obstacle to be agreed on was the place of a central division for the infringement court and the language f the court proceedings. The biggest issue in the discussion of the Unified patent Court (UPC) finally was settled on 29 June 2012. A compromise of the European Council agreed on the seat of the Unified patent Court to be in Paris with sections in London and Munich.

The preparatory work has begun

The preparatory work has begun. More information can be found on the Unified patents Courts website.