EU: what the “European patent” means, and what it doesn’t mean
For three decades, the European Patent Office has offered inventors and companies a way to obtain patent protection in a large number of European countries through a single, centralized procedure. What, then, is yesterday’s adoption by the European Parliament of a package of legislation concerning the “EU patent” all about? It’s not about streamlining or centralizing the actual proceedings up to the grant of a patent, but about what happens after the European Patent Office decides to grant a European patent.
1. The cost of validating a patent goes down
Until now, grantees of a European patent had to validate their patent in (up to forty) individual European states by performing a number of acts prescribed by the national laws of these states, which can include submitting a (partial) translation of the patent, appointing a local representative, and/or paying fees.
The total cost for doing so for all the member-states of the EU would run into the tens of thousands of euros. The unitary patent protection allows European patent holders to validate their patent en bloc for 25 EU states (the EU without Spain and Italy). That means that the entire EU is now treated as if it were a single country, requiring only a single translation and validation fee, and requiring a single series of annual renewal fees to keep the patent alive. This avoids high translation and validation costs which make the existing European system so costly.
2. The cost of enforcing patents goes down
In addition, where existing European patents are treated by courts as a bundle of national patents as far as validity and infringement issues are concerned, the EU patent will constitute a unitary title (like its cousins the Community Trademark and the Community Design). This means that patent holders can now start a single invalidation procedure against patent infringements occuring in different EU member states. For this purpose, the states that participate in the EU patent will sign a treaty establishing a Unified Patent Court, which will be headquartered in Paris, as was agreed at the EU summit of last June. Not only do the costs of validating a patent go down with the new EU patent, but also the cost of enforcing it across Europe.
3. It does not become ‘easier’ to patent innovations
On the other hand, it will not become ‘easier’ to patent innovations. The EU patent does not bring any new rules about patentability requirements. The decision to grant a patent or refuse an application will continue to be made by the European Patent Office on the basis of the European Patent Convention, taking into account its own guidelines for examination and a vast body of established case law.
For instance, the EU patent does not by itself make patenting software any easier or harder than it is today. Today, it’s already possible under existing legislation to patent “computer implemented inventions” in Europe, if they meet the requirements for patents.
Some of the press coverage on the EU patents boasts that the new system will bring the cost of the system down to “nearly the level of the US”. Such claims should be treated with extreme caution. First of all, you have to ask whether it’s economically relevant at all if the cost in the EU for patenting innovations goes down to the level of the US. Foreign applicants for European patents benefit just as much from the lowered costs of patenting their innovations as European applicants.
And what’s more, the total cost of ownership of a patent is much more than just the fees paid to the respective patent offices. From the drafting of the original patent application, over its prosecution up to grant, to the negotiation of license agreements and the enforcement of the patent against infringers, the intervention of qualified professionals such as patent attorneys and lawyers and use of the court system will often be necessary. These costs will vary according to the field and complexity of the invention, and the jurisdiction in which the patent is obtained.
In summary, the removal of unnecessary administrative burdens and fees is certainly good news for innovative companies that want to protect their inventions in the EU. While getting a patent has not become any easier (the same substantive patentability requirements remain in place) validating and enforcing it throughout the EU now becomes affordable.
Photo: patent pending by Rob Boudon, Flickr
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