On May 5, a potential legal obstacle against the Unitary Patent and Unified Patent Court was removed when the Court of Justice of the European Union (CJEU) dismissed two Spanish actions against the regulation of the unitary patent protection. These actions, which were brought before the Court in March 2013, question two aspects of the regulation; 1) that the regulation is not in line with EU law, in particular with respect to the distribution of renewal fees, and 2) that the proposed translation regime is discriminatory (to Spain and others).
Regarding the issue of conformity with EU law, the Court finds that the EU legislature did not delegate any powers which are exclusively its own under EU law. The Court also notes that the Member States must be responsible for all implementing measures, especially as the EU is not a party to the EPC. Regarding the issue of translation regime, the Court admits that the regulation differentiates between languages, but considers this differentiation to be motivated by the purpose to make patent protection more accessible.
Personally, I am not surprised by the decision. The political will to put a “Community Patent” in place is strong, and it appears no legal principles will be allowed to stand in its way. Regarding the translations regime, I think the Court has got it quite right. On the one hand, it is certainly true that the system could be seen as unfair to Spain (just as it is to Sweden, Denmark, and any other country not having English, French or German as one of their official languages). On the other hand, it is just as certain that Europe can never grow economically strong while it is fragmented by language. If Europe is to maintain its position as one of the 4-5 most important markets, Europe must be perceived as one market. The European patent system is of course not the only relevant factor in this context, but it can be an important part of the puzzle.
The winding road of the Unitary Patent and Unified Patent Court now continues. For the system to enter into force, it must be ratified by 13 states, including France, Germany and Great Britain. So far, six states have ratified the agreement (France, Sweden, Denmark, Austria, Belgium and Malta), and at least the Netherlands are on their way.
The level and distribution of renewal fees remains as one of the major hurdles, not only because these issues are difficult to agree upon, but also because they will most likely determine the impact and speed of propagation of the new system. Currently, two different proposals have been presented, referred to as TOP4 and TOP5. Essentially, the proposals set the renewal fee level equal to the sum of the national renewal fees of the four or five most popular countries to validate European patents in. The TOP5 proposal has the extra twist of a 25% discount for SMEs (and some other applicants).
In my personal opinion, the cheaper TOP4 alternative is the better one, in order to make the system as attractive as possible. The idea of an SME discount of course sounds attractive, but I find the discount too small to have any significant effect. With renewal fees according to TOP4, I think the Unitary Patent will be quite attractive, at least from a renewal fee point of view.
Fabian Edlund, European Patent Attorney