Will Europe ever become a real single market? Interview unitary patent developments

As a key player in the European market, Nederlandsch Octrooibureau is constantly abreast of progress, on the European patent front. Two of our top specialists on EU patent law, Ruurd Jorritsma and Paul Clarkson, reflect on the latest developments, opportunities, threats, hurdles and intricacies of the new “EU” Patent. 

What is the main advantage of the proposed unitary patent system?

Ruurd Jorritsma: We will only have a single translation upon grant and the patent will always be available in English. There is a single maintenance fee for all participating countries and, most importantly, we will have a single enforcement procedure in a centralized court. We realize that for non-Europeans, our present system looks very complex; that will greatly improve. 

What else is wrong with the current situation?

Paul Clarkson: The costs are too high for protection in the whole of the EU and when it comes to enforcement the complexity and uncertainty is so great that, many hesitate to make full use of their IP. When you set out to protect an invention you rarely know how important or critical it will be or where your competitor may be located in ten years time. The present system is like playing “Battleship”- you drop a few depth-charges in the most likely locations and maybe get a hit! On the other hand, the EU is a single market so if you get it wrong, it is almost impossible to prevent products flooding from a state where no patent is in force to ones where you did file.

Will the unitary European patent system be much cheaper and faster?

Ruurd Jorritsma: Hopefully! The patent grant procedure will probably not be faster but it will be less expensive. Most importantly, the enforcement of a patent should be much more predictable, and that is what industry needs. How quick the court system will operate is difficult to predict as we are still rather far away but I think all parties agree that we should not be any worse off in this regard.

What will change in the work of the patent attorneys?

Paul Clarkson: Prosecution firms will likely see little change but those who live off national administrative proceedings will have to look elsewhere for their income. That may put pressure on prices in general. On the other hand: if the litigation system works well, there will be relatively more cases and good patent attorneys will be in demand.

Do you expect more European clients after the implementation of the unitary patent?

Ruurd Jorritsma: Yes, I expect European industry, both small and large, to become more active. I do also expect a rise in work from outside Europe. If you have a fixed budget to spend on patents and you can get three for the price of two, you will file more patents – especially if you see that they can be usefully invoked to protect your market.

What will happen if some member states refuse to proceed with the development of a unitary patent? How does that fit into the concept of a European single market?

Paul Clarkson: The present proposal foresees that a group of countries agree to move forwards together. So far 25 of the 27 countries have indicated agreement with the proposed language regime with only Spain and Italy holding back. The countries that eventually enter into the Unitary patent agreement will form a block for which unitary protection will be available. For the countries outside this block, a conventional national patent will be required to achieve full EU coverage. This is still a vast improvement over the present situation. It is of course a concern that some states are unable or unwilling to join. We really need to look into the reasons for their reticence.

What can we learn from other patent systems?

Paul Clarkson: In terms of a unitary patent I do not think there are any precedents although we could look to the Benelux trademark office as an example of good co-operation. Ruurd Jorritsma: In terms of the administrative granting system, the European Patent Office (EPO) has always tried to show the world how to do it – giving training and advice to smaller states.. There are plenty of good examples of systems that work differently but in Europe we have settled for the system we have and I do not see it changing drastically. As a profession we are also very happy with how the EPO works.

What is the biggest hurdle? What problems have to be overcome?

Paul Clarkson: Getting the litigation system up and running. There may be concerns that the best work will be directed to a small number of (English speaking) specialist lawyers. Behind the scenes that may play a role. Also, fighting over the future distribution of renewal fees is not yet finished. Spain and Italy are still digging in their heels over the language regime and may work hard to torpedo the whole initiative – they have apparently recently filed a complaint to the European Court of Justice objecting to the proposal of the other countries to move ahead without them..

What role does Nederlandsch Octrooibureau play in this development?

Paul Clarkson: We are involved with the EPI which is active in promoting change. I am assisting on the litigation committee which strongly lobbies for progress in achieving a centralized litigation system and ensuring rights of audience for patent attorneys.

On what time scale are new developments to be expected?

Ruurd Jorritsma: I expect we will know this summer whether the momentum will continue or not. If so, we could have a working system by 2014. If someone is determined to put on a wet blanket this may fizzle and smolder for another ten years. Remember the Community Patent Treaty was signed in 1975 so there are groups out there who don’t see it as a priority.

Ruurd Jorritsma and Paul Clarkson