Patent rules for Europe simplify protection across member states

Businesses have been warned to familiarise themselves with new rules for pan-European patents that have been brought in across a number of EU states.

The new EU Unified Patent System, which came into force last month, is designed to simplify pan-European patents for companies, allowing them to apply in a single country for patent protection across 17 participating EU member states.

Considered the most important reform in the history of the European patent system, it allows patent-holders pay for a single unitary patent that covers those member states rather than individual patents across Europe, saving them time and money.

The agreement also facilitates the establishment of the Unified Patent Court to oversee the enforcement of those patent rights.

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However, Ireland is among the member states that have signed up but have yet to ratify the agreement, along with Cyprus, Czech Republic, Greece, Hungary, Romania and Slovakia. To establish a local division of the court, Ireland would have to hold a referendum, but a date has yet to be set for that.

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Before the introduction of the new agreement, patents had to be validated in individual countries, a costly and time-consuming process.

“Effectively, European patents became a bundle of national patents which worked independently. Typically, you would validate patents in the main jurisdictions like France, Germany and the Netherlands. Once you did that, it became a national patent in France, Germany and the Netherlands. To enforce that, you’d have to take multiple actions if you wanted to enforce your intellectual property rights in Europe,” said Paul Keane, a partner at law firm FR Kelly and Associates.

“The main drawback of the system is that it is very expensive to do this validation step. It wasn’t uncommon that different courts and different jurisdictions gave conflicting decisions.”

But while the new system eliminates that complexity, it also makes it easier to challenge the new unitary patents. The move to the new unified patent system means that it can be easier for patents to be challenged, as it would only need to be challenged in one of the member states in which the system is recognised.

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“If you have a unitary patent covering 17 countries, it only takes one action to revoke that patent,” Mr Keane explained. “If you had the classical system, and you had patents in multiple jurisdictions, if somebody challenged the validity of that patent, they would have to go into each jurisdiction.”

Some 17 EU member states have signed up already to the new body, including France, Germany and Belgium. Individuals and companies filing European patents will have the option to select the new unitary patent that covers those 17 states at the grant stage.

The current system and the new one will coexist for several years, Mr Keane said, for a transitional period.