Tuesday, 26 January 2016

Preparing for the Unified Patent Court











I have been invited to speak to the Merseyside meeting of the Chartered Institute of Patent Attorneys at the Hope Street Hotel at 40 Hope Street in Liverpool on 28 Jan 2016. The title of my talk is "Preparing for the UPC" and the reason why I have been asked to give that talk is that the UPC or Unified Patent Court is likely to open for business in the next few months. When it does the European Patent Office will be able to grant European patents with unitary effect or unitary patents, that is to say single European patents for the territories of a group of EU member states, including the UK, France and Germany, as though they were one country.

One of the reasons why European businesses have been less creative and innovative than their competitors in the United States, Japan and other countries is that it is much more expensive for European entrepreneurs to patent their inventions in the European Union.  In 2005 the European Patent Office commissioned research which compared the cost of patenting an invention  set out in a specification consisting of 11 pages of description with 10 claims spread over 3 pages in Europe the USA and Japan (see Cost of Patents: EPO Report tells us what most of us already knew 23 Dec 2015 NIPC Inventors Club). I wrote:
"The cost of obtaining such a patent was €30,530 in Europe (as of 23 Dec 2005 £20,861.15) compared to €10,250 (£7,004.85 for a comparable US patent granted to a US company - British applicants would have to pay £16,469.94 which is still less than they have to pay for protection in their own market) and €5,460 (£3,731.36) that a Japanese company would have to pay for a patent in Japan."
That was 10 years ago and some costs such as translation have come down as a result of the London agreement (though others have gone up) but the differential still remains. The unitary patent will greatly reduce the cost of patent prosecution in our home market (or if we decide to exit the EU in the forthcoming referendum) our biggest and closest export market.

Even greater savings will be made in the cost of patent enforcement. Another report from about the same time compared the cost of bringing an infringement claim in France, Germany, the Netherlands, the United Kingdom and United States (see The Enforcement of Patent Rights by the Intellectual Property Advisory Committee). The costs in France, Germany and the Netherlands ranged from €10,000 to €50,000 whereas those in the Patents Court were over £1 million and between £150,000 and £250,000 even in the Patents County Court. Costs in the USA were even higher that in England but there it is unusual for the losing party to pay the successful party's costs and it is possible for lawyers to accept instructions on a contingency fee basis. When those factors are taken into account it is small wonder that the UK continues to file consistently fewer applications for European patents than German, France and the Netherlands (6,823 in 2014 compared to 31,647 from Germany, 12,873 from France and 8,104 from the Netherlands according to the European Patent Office).

From the day it opens Unified Patent Court will have exclusive jurisdiction over claims for the infringement and revocation of unitary patents. For a transitional period of 7 years it will share jurisdiction over claims for infringement and revocation of other European patents including those that designate the UK with the Patents Court, Intellectual Property Enterprise Court and other national courts unless the owners of such patents decide to withdraw their patents from the UPC's jurisdiction within that transitional period.  After that transitional period the UPC will have exclusive jurisdiction over all European patents including those that have been granted for the UK. Eventually businesses from all parts of Europe, including the UK, will operate on a level playing field in that costs and delays for UK businesses should be no greater than for their German, French or Dutch competitors.

The immediate reduction in prosecution and maintenance costs and the eventual levelling out and reduction in enforcement costs should act like a shot in the arm for British businesses and especially those based in North West England. Lower costs should be particularly beneficial for small businesses and individual inventors who will be eligible once again for legal aid - a benefit that was taken away by the Access to Justice Act 1999 (see Jane Lambert Legal Aid for the UPC 23 Jan 2016 NIPC  Inventors Club).  If you want to discuss this article or the unitary patent or Unified Patent Court in general please call me on 0161 850 0080 during office hours or message me through my contact form.

Date
Author
Title
Source

Preparatory Committee
UPC website
23 Jan 2016
Jane Lambert
NIPC Law
23 Jan 2016
Jane Lambert
NIPC Inventors

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