The construction of the unitary patent is one of the longest stories in the construction of the Union.
Let's look at the main stages of this construction together.
At the origins
Indeed, in parallel with the adoption of the European Patent Convention (or EPC) in 1973 (and entered into force in 1977), a Community Patent Convention was signed in 1975 but never entered into force (due to lack of ratification by member states in 1990).
In 2000 the Council proposed a new Community patent regulation, but again this ended in failure (in 2004) due to the opposition of many countries regarding the options chosen for translations.
Attempts at compromise
In 2009, the Swedish Presidency decides:
- to rename (rightly) the Community patent as a unitary patent;
- to put in a separate agreement questions relating to translations (which often lead to a lot of controversy);
- to request an opinion from the Court of Justice concerning the planned agreements.
This made it possible (at the end of 2009) to have an agreement concerning the non-sensitive aspects of the agreements (ie everything except the translations).
In 2010, the Belgian Presidency sought to find a compromise regarding the translation regime:
- Any patent in German or French will be translated into English;
- Patents in English can be translated into any official language of a Contracting State;
- In the event of a dispute, the judges will take into account whether the infringer knew or would reasonably have known that he was an infringer with regard to the lack of translation.
However, this was not enough and in November 2010, the member states of the Union found that they were unable to reach a compromise.
It is for this reason that enhanced cooperation (Article 20 KILL) was launched at the request of 12 member states (then 25 very quickly, except Italy and Spain).
Authorization for this enhanced cooperation was given by the Council on March 10, 2011.
Italy and Spain (which was fighting against the planned translation system and therefore did not participate in the enhanced cooperation) brought an action against the council's decision to annul it before the Court of Justice of the Union but on April 16, 2013, the Court of Justice dismissed them (C-274/11 and C-295/11).
In parallel, on December 17, 2012, a regulation 1257/2012 " implementing enhanced cooperation in the area of creating unitary patent protection Was adopted as well as a regulation 1260/2012 (same day) regarding translations.
These decisions ultimately led to Italy requesting its participation in the enhanced cooperation, which was formally accepted on September 30, 2015.
Difficulties with Great Britain
In 2016, Great Britain decided to leave the European Union.
This made it possible to tie a few knots to the brains of the most brilliant jurists of Union law ...
Indeed, before their departure in March 2020, the English still ratified the JUB agreement in 2018.
Several questions therefore arose:
- can Great Britain participate in enhanced cooperation despite its departure since they ratified before their departure? (in reality this question may not find a real answer since the English have indicated that they do not ultimately wish to participate in this cooperation).
- does the ratification of Great Britain count for the calculation of the preamble of theJUB agreement, providing for the ratification of 13 member states and the 3 member states filing the most European patents at the time of signing the agreement?
- is it possible to change the location of the central division currently located in London without having to go back to the "ratification" box? does section 87 (2) JUB agreement could be used to modify this agreement?
- What happens to the English judges who have been appointed?
Difficulties with Germany
With regard to Germany, a number of constitutional questions have been asked, both regarding form and content.
If the substantive issues were rejected by the Constitutional Court (Bundesverfassungsgericht), the latter nevertheless considered in March 2020 that the German ratification was not valid by the parliament should have given its agreement with a 2/3 majority (in only 35 parliamentarians were present).
If this formal question does not seem too difficult to overcome, it will probably be necessary to wait for the end of the Coronavirus crisis so that the German parliament has time to consider this question…