EU patent

from Wikipedia, the free encyclopedia
EU patent protection:
  • Ratifiers
  • Signatory
  • Non-signatories
  • only participating in the Unified Patent Court
  • Non-participants
  • Other European Patent Convention parties (no participation possible)

    • The planned EU patent or unitary patent (official name: European patent with unitary effect - EPeW) would be a patent that would gain uniform validity in those states of the European Union that have joined the corresponding enhanced cooperation . These are currently all EU countries, with the exception of Spain and Croatia. The EU patent could significantly reduce the significant costs of translations between the languages ​​of the EU.

    The precondition for the entry into force of the regulations on EU patents is the previous entry into force of the Agreement on a Unified Patent Court .

    Patent Office and Procedure

    Neither a new authority (such as a patent office of the European Union) will be created for the granting of the EU patent, nor will the European Union Office for Intellectual Property be expanded. Rather, the European Patent Office , which is already entrusted with the granting of European patents (EP) , will be responsible for the grant . However, the search results of national patent offices should be given greater consideration. The grant procedure is based on the EPC.

    The European Patent Office is not an EU authority, but the executive body of the European Patent Organization , a separate international organization .

    There are no plans for the EU to join the European Patent Convention. It would have reduced the conflict of interest in the Administrative Council, because the national offices are linked to the European Patent Office in a variety of ways (financially through the annual fees and through cooperation projects , as well as competitors or aspirants to take on parts of the work, by filling top positions in the EPO, etc. .). The role of the national offices would nevertheless be strengthened because, according to the current proposal, part of the annual fees for the EU patent is to be paid directly to the national offices and not to the states as such.

    Instead of a national patent or a European patent , in which only the grant procedure is centralized and which becomes a “bundle” of national patents after it has been granted, the EU patent would always be applied for simultaneously for all participating member states of the European Union. This application could then also be made within a European patent application by designating the European Union (possibly in addition to designating states that are not EU members, such as Switzerland and Turkey). Once granted, the patent would no longer be broken down into individual national patents, but would instead develop into a single patent for the participating EU states.

    The language solution currently proposed is based on an application in one of the official languages ​​of the European Union , possibly a translation into one of the three official languages ​​of the European Patent Office (English, German or French), publication in this procedural language and all other official languages ​​of the European Union by machine translation, Granting in the language of the proceedings, filing of human translations of the claims and machine translation of the description.

    Comparison of the EU patent with the European patent (EP)

    The EU patent would be a modification of the European patent in relation to:

    1. Territory: Extension to all member states of the European Union or all states which participate in the enhanced cooperation (for the European patent the states must be named individually. An extension to all EU member states has so far been seldom made by the applicant - probably for cost reasons desired)
    2. Centralization in the area of ​​nullity actions and infringement (as planned EPLA) through a separate court
    3. Changed requirements for translations (similar to those agreed in the London Agreement, which, however, was only signed by some of the EPC states).

    The compulsory territorial extension to all member states of the European Union is politically desirable because the previous system contradicts the free movement of goods in the European Union. Post-grant centralization goes in the same direction, providing consistency and cost savings for the contending parties. In particular, it prevents national courts from interpreting patent infringement or nullity differently in different member states of the European Union (e.g. Epilady case), which means that a plaintiff can influence the judgment by choosing a court (forum shopping). Another advantage would be the early electronic availability of the translations, which is usually not the case with European patents.

    The main disadvantages of the EU patent are in the field of translation . The machine translation is faulty and requires programs for commercially unavailable language pairs (for example, from German into Maltese), human translation of the claims in some official languages of the European Union is not economical. The use of statistical machine translation is currently being considered, similar to the one in the EuroMatrix project funded by the European Union. Another problem area is the language regulation in court. Another problem area is the higher costs for renewal fees compared to the European patent applications, which, like the majority (currently 50% of the applications) are only validated in Great Britain, France and Germany. For an EU patent, annual fees must be paid in all validation states. So far, no member state has been prepared to forego its share of the fee. A price advantage in favor of the EU patent only results in comparison to European patent applications that are validated in more than 5 countries. This probably affects less than 10% of all registrations.

    history

    The Convention on European Patents for the Common Market (Community Patent Convention ) was signed on December 15, 1975 . This would have been a separate contract and not secondary Community law. The ratification failed for various reasons , so that the convention could not enter into force.

    In December 1989 a second attempt was made to establish a community patent. 12 states signed the convention; However, it was only ratified by seven states and thus did not come into force.

    A new attempt was started with the Commission's proposal of August 1, 2000 for a Council regulation on the Community patent. The Community patent should no longer replace national patents, but rather be available as an option for applicants like the Community trademark or the Community design . In addition, the regulation should be made by a regulation so that no ratification by the member states is necessary.

    On March 3, 2003, it looked like European unification on this issue. Hope died out in the following 15 months, during which the disagreement over the language regime and the deadlines for the submission of translations could not be resolved. Significant progress was made again in 2009 with the Council's agreement.

    Efforts to create such a patent, for which the term Community patent was intended before the entry into force of the Treaty of Lisbon , have been around for a long time, but have always failed because in principle unanimity is required. Spain and Italy in particular opposed the planned language regime.

    After many years of unanimity, the Council of the European Union approved enhanced cooperation between 25 EU member states on March 10, 2011 (all with the exception of Italy and Spain). Shortly afterwards, on April 13, 2011, the EU Commission presented its proposal. This proposal was adopted by the Council on June 27, 2011, together with the proposal for the translation regulation, with changes relating, for example, to the distribution key for annual fees.

    After the summer break, the proposals were examined by the European Parliament within the framework of internal market legislation . It must be clarified whether the European Patent Convention needs to be changed with regard to the EU patent. It is conceivable that the amalgamation of states to a single designation "EU" can be mapped in the present form analogous to the amalgamation of Switzerland / Liechtenstein with the European Patent Convention.

    At the end of 2011, the legislative package for the new EU patent protection consists of proposals for a regulation on unitary patent protection and a language regime, as well as a proposal for an international agreement to create a unitary patent court.

    On November 22, 2011, the Legal Affairs Committee of the European Parliament gave the rapporteurs for the legislative package the mandate to negotiate the relevant dossiers with the European Commission and the Council of the European Commission. As Spain and Italy had previously spoken out against the legislative package proposals, the "enhanced cooperation" procedure was used for all three proposals.

    On December 20, 2011, the Committee on Legal Affairs of the European Parliament approved a proposal for the legislative package that was presented on December 1, 2011 by representatives of the European Parliament and the Polish Presidency.

    On December 11, 2012, the European Parliament approved the package comprising an EU patent, language regulation and patent court. The decision of the European Parliament was confirmed by the Council on December 17, 2012. On December 31, 2012, the central regulations (EU) No. 1257/2012 and (EU) No. 1260/2012 were announced in the Official Journal of the European Union (OJ). Both ordinances came into force on January 20, 2013.

    On March 7, 2017, the Spanish parliamentary committee on economy, industry and competition gave its majority approval to a request by the Spanish socialist PSOE party, according to which the government should re-examine the accession of Spain to the system of the unitary patent. However, the Minister for Economic Affairs and Competition, Luis de Guindos, rejected this on March 22, 2017. The reasons given were the regulation of the language issue and doubts about the legal protection of the unitary patent. After the German Bundestag had passed both of the associated bills, a start was likely on December 1, 2017. However, in June 2017 a constitutional complaint was filed in Germany against the ratification of one of the treaties. At the request of judges of the Federal Constitutional Court , Federal President Steinmeier did not sign the law. With a decision of February 13, 2020, the Federal Constitutional Court granted the complaint, so that one of the treaties and thus also the community patent system cannot come into force until it is ratified again in Germany. Another problem to be solved is Brexit, as the UK has to ratify under the previous treaty, but the UK has announced that it will withdraw its ratification.

    See also

    Web links

    Individual evidence

    1. ↑ a b Patent law: EU achieves political breakthrough for an improved patent system.
    2. ↑ Helena Herda: The new European patent with unitary effect. In: ecolex . P. 444, point 3, indicates costs for the EPeW of at least EUR 4,700, - which are offset by EUR 36,000, - as the average costs for the European patent .
    3. ↑ a b c EU Council: Proposal for Community patent text 2009 (English, PDF).
    4. ↑ register.consilium.europa.eu (PDF; 125 kB) European Standard for Searches (English).
    5. ↑ Conflict of interest from the point of view of the EPO union  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; 49 kB)@1@ 2Template: Dead Link / www.suepo.org  
    6. ↑ London Agreement, entered into force on May 1, 2008 ( Memento of the original of June 5, 2009 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.epo.org
    7. ^ Economic Implications of a Fragmented Patent System in Europe.  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF).@1@ 2Template: Toter Link / www.cesifo-group.de  
    8. ↑ euromatrixplus.net EuroMatrixPlus
    9. ^ EPO-Google agreement on machine translation of patents.
    10. ↑ Reddie & Grose LLP: How Much More Will the Unitary Patent Cost? (PDF; 776 kB)
    11. ↑ 89/695 / EEC: Agreement on Community Patents - concluded in Luxembourg on December 15, 1989
    12. ↑ EPO page Community patent ( Memento of the original dated May 17, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.epo.org
    13. ^ Note from the General Secretariat of the Council. (PDF).
    14. ↑ SCADplus: Community patent.
    15. ↑ Zapatero y Berlusconi se implican en la patente comunitaria (Spanish, El País . 9 Dec. 2010).
    16. ↑ España vetará la patente comunitaria si no se admite la lengua española (Spanish, El País . May 29, 2008)
    17. ↑ Council approves enhanced cooperation (PDF; 34 kB)
    18. ↑ Proposal for a regulation on the implementation of enhanced cooperation (PDF; 218 kB)
    19. ↑ History of the EU patent according to EPO ( Memento of the original from October 19, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.epo.org
    20. ↑ Supplementary agreement to the CH / LI patent protection contract
    21. ↑ Advocate General Yves Bot also called on 11 December 2012 in his Opinion on Cases C-274/11 and C-295/11 (combined), with which Italy and Spain had referred to the ECJ , in order to strengthen the legality of the authorizing decision on a Cooperation with the EPeW (Council Decision 2011/167 / EU in OJ L 2011/76, 53) proposed to dismiss the complaints from Italy and Spain. The ECJ followed this proposal and dismissed the complaint on April 16, 2013 (decision of the Grand Chamber).
    22. ↑ consilium.europa.eu Information from the Council of the European Union
    23. ↑ Both ordinances are based on the new competence basis for European intellectual property law in Art 118 TFEU.
    24. ↑ Kluwer Patent Blog: Parliament votes in favor of Spain joining Unitary Patent system , accessed March 7, 2017.
    25. ↑ Kluwer Patent Blog: Minister De Guindos says Spain will not join Unitary Patent system , accessed on March 22, 2017.
    26. ^ Heise: Bundestag supports the planned EU unitary patent , accessed on March 14, 2017.
    27. ↑ juve: Patent world in shock: Unknown plaintiff slows UPC ratification , accessed on August 9, 2017
    28. ↑ Decision of the BVerfG of February 13, 2020