UNITARY PATENT AND UNIFIED PATENT COURT: STATE OF PLAY. Stefan Luginbuehl Lawyer, International Legal Affairs, PCT European Patent Office, Munich

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1 UNITARY PATENT AND UNIFIED PATENT COURT: STATE OF PLAY Stefan Luginbuehl Lawyer, International Legal Affairs, PCT European Patent Office, Munich

2 REGULATIONS ON UNITARY PATENT PROTECTION 20 January 2013: Entry into force of two EU regulations Regulation (EU) No. 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements For the 25 participating member states

3 REGULATIONS ON UNITARY PATENT PROTECTION Italy joined the enhanced co-operation scheme 2 October Regulations (EU) No. 1257/2012 and (EU) No. 1260/2012 are now in force for 26 of the 28 EU member states (exceptions: Croatia and Spain). They apply from the date of the entry into force of the Agreement on a Unified Patent Court (UPC Agreement).

4 AGREEMENT ON A UNIFIED PATENT COURT (UPC AGREEMENT) The UPC Agreement was signed on 19 February 2013 by 25 of the 28 EU member states (exceptions: Croatia, Poland and Spain). It will enter into force after the deposit of the 13th instrument of ratification or accession (including France, Germany and the UK). So far, nine states have deposited their instruments of ratification. Several states have indicated their intention to ratify in the next few months. Austria 7 August 2013 France 14 March 2014 Sweden 5 June 2014 Belgium 6 June 2014 Denmark 20 June 2014 Malta 9 December 2014 Luxembourg 22 May 2015 Portugal 28 August 2015 Finland 19 January 2016

5 THE UNITARY PATENT: CONCEPT The unitary patent is a European patent with unitary effect. It has unitary character throughout the territories of the 26 participating member states. European patents will benefit from unitary effect at the request of the patentee. There is a single EPC procedure for European and unitary patents. The application and examination procedures will remain unchanged.

6 THE UNITARY PATENT: CONCEPT The unitary patent will co-exist with national patents and traditional European patents. Various combinations of classical European patent and unitary patent: a unitary patent for the 26 participating EU member states, together with a classic European patent taking effect in one or more EPC contracting states (such as, for instance, Norway, Spain, Switzerland or Turkey) No double protection by a unitary patent and a classic European patent on the territory of the 26 participating member states. Double protection by a unitary patent and a national patent is open and will be decided at national level. Effect: unitary patent takes effect retroactively in the participating member states as from the date of publication of the mention of grant of the European patent.

7 REGULATIONS ON UNITARY PATENT PROTECTION Appeal proceedings European patent application Refusal or withdrawal of application Limitation Revocation Opposition proceedings Filing and formalities examination Search report with preliminary opinion on patentability Substantive examination Grant of European patent Request of the patent proprietor European patent with unitary effect in the territories of the 26 participating member states Same grant procedure as for traditional European patents The European patent is deemed not to have taken effect as a national patent in the 26 participating member states

8 THE UNITARY PATENT: TRANSLATION ARRANGEMENTS Builds on EPO language regime (Article 14(6) EPC). No further translations required after transitional period, unless a legal dispute arises. Reliance on high-quality machine translations for applications and specifications to be available for free in all EU official languages for information only (no legal effect)

9 THE UNITARY PATENT: THE SELECT COMMITTEE The Select Committee consists of representatives of the 26 participating member states, as well as the European Commission, epi, BusinessEurope and EPC contracting states that are not participating in the enhanced co-operation scheme as observers. Concluded main tasks in relation to the implementation of the unitary patent with the adoption of the secondary legislation : Implementing rules relating to unitary patent protection Rules relating to Fees Budgetary and Financial Rules Rules relating to the Distribution of Fees among the participating member states

10 THE UNITARY PATENT: IMPLEMENTING RULES The Implementing Rules set out the details of: the registration of unitary effect and the tasks of the EPO related to it the tasks and competences of the Select Committee and the EPO President the entries in the Register for unitary patent protection Consolidated version was adopted by the Select Committee on 15 December

11 REGISTRATION OF UNITARY EFFECT SUBSTANTIVE REQUIREMENTS Unitary effect can only be requested for European patents that were granted with the same set of claims in respect of all 26 participating member states

12 REGISTRATION OF UNITARY EFFECT FORMAL REQUIREMENTS The patent proprietor must file a request for unitary patent protection with the EPO no later than one month after the mention of grant is published. The request must be filed in writing in the language of the proceedings. It must include: the name of the requester, the number of the European patent to which unitary effect is to be attributed, and information about the representative, and for the transitional period a full English translation if the patent is granted in French or German, or a full translation into any language of the EU if the patent has been granted in English

13 REGISTRATION OF UNITARY EFFECT The EPO will register the unitary effect in the Register for unitary patent protection and inform the requester if the substantive and formal requirements have been met. It will reject the request if the substantive requirements have not been met or if the request is not filed in due time. In the latter case, a request for restitutio in integrum may be filed within two months of expiry of a one-month period.

14 REGISTRATION OF UNITARY EFFECT If the request is filed in due time but at least one of the formal requirements is not met, the EPO will invite the requester to correct the deficiencies within a non-extendable period of one month. The request will be rejected if the deficiency is not corrected within this period. Requesters can file an appeal with the Unified Patent Court (UPC) against the decision of the EPO.

15 RENEWAL FEES Single renewal fee for the unitary patent to be paid to the EPO. EPO retains 50%. Remaining amount distributed in accordance with Article 146 EPC and the key defining the participating member states' share. December 2015: Select Committee adopts the Rules relating to Fees and thus the TOP 4 proposal for renewal fees for European patents with unitary effect, as well as the key defining the participating member states' share. TOP 4 proposal involves charging the sum total of the national renewal fees payable in Germany, France, The Netherlands and the United Kingdom.

16 RENEWAL FEES: THE ADOPTED TOP 4 APPROACH 2nd year: EUR 35 3rd year: EUR 105 4th year: EUR 145 5th year: EUR 315 6th year: EUR 475 7th year: EUR 630 8th year: EUR 815 9th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR th year: EUR Renewal fees reduced by 15% if patent holder registers a license of right.

17 UNIFIED PATENT COURT (UPC): STRUCTURE Court of Justice of the EU Requests for preliminary rulings Court of appeal Luxembourg Local divisions Examination Central division Paris (general) London (pharmaceuticals) Munich (engineering) Regional divisions Examination Court of First Instance

18 UNIFIED PATENT COURT: LOCATIONS Local/regional division(s) Brussels, Copenhagen, Dublin, Dusseldorf, Hamburg, Helsinki, Lisbon, London, Mannheim, Milan, Munich, Paris, Stockholm, The Hague, Vienna Central Division Paris, London, Munich Court of Appeal Luxembourg Patent mediation and arbitration centres Lisbon, Ljubljana Judicial Training Centre Budapest

19 JURISDICTION OF THE UPC AS REGARDS THE SUBJECT-MATTER Article 32 UPC Agreement Exclusive jurisdiction in respect of actions for: Actual or threatened infringement of classic European and unitary patents and Supplementary Protection Certificates (SPCs) and related defenses, including counterclaims concerning licences Declarations of non-infringement of classic European and unitary patents Revocation of classic European and unitary patents by direct attack by counter-claim Declaration of invalidity of SPCs Injunctions

20 JURISDICTION OF THE UPC AS REGARDS THE SUBJECT-MATTER Article 32 UPC Agreement Exclusive jurisdiction in respect of actions for provisional and protective measures for damages or compensation related to decisions of the EPO in carrying out the additional tasks entrusted to it in relation to the unitary patent

21 JURISDICTION OF NATIONAL COURTS NATIONAL COURTS All actions relating to classic European patents and unitary patents which do not come within the exclusive jurisdiction of the UPC, such as Actions relating to the right to a patent, or Actions relating to the transfer of a patent right Parallel jurisdiction with UPC concerning disputes relating to classic European patents for transitional period of at least seven years. Opt-out possibility with regard to European patent applications, classic European patents and SPCs, but not unitary patents.

22 THE PREPARATORY COMMITTEE The Committee is composed of the 25 UPC Agreement signatory states, plus the European Commission, the EPO and others as observers. Its discussions have covered: Rules of Procedure of the UPC Fee structure and ceiling of recoverable costs Budgetary rules Rules governing the Registry Rules on the European Patent Litigation Certificate (EPLC) Rules relating to mediation and arbitration proceedings Training of candidate judges and recruitment procedure Judicial salaries and allowances Rules of proceedings of the different UPC committees Protocol on the provisional application of the UPC Agreement

23 PREPARATORY COMMITTEE: MAJOR STEPS February 2015: Start of the training of candidate judges with the support of the EPO May 2015: Consultation on Rules on Court Fees and recoverable costs September 2015: Agreement on a draft proposal for rules on the European Patent Litigation Certificate (EPLC) 1 October 2015: Protocol on the provisional application of the UPC Agreement signed in Brussels 19 October 2015: Agreement on the draft Rules of Procedure of the UPC

24 THANK YOU FOR YOUR ATTENTION Stefan Luginbuehl, PhD Lawyer, International Legal Affairs, PCT European Patent Office, Munich Tel Fax

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