The development of the unitary patent is one of the longest stories in the construction of the Union.
Let’s review the key milestones in this development.
Origins
Indeed, alongside the adoption of the European Patent Convention (or EPC) in 1973 (which entered into force in 1977), a Convention on the Community patent was signed in 1975 but never entered into force (due to the lack of ratification by the Member States in 1990).
In 2000, the Council proposed a new regulation on the Community patent, but once again, this ended in failure (in 2004) due to opposition from many countries regarding the translation options chosen.
Attempts at compromise
In 2009, the Swedish Presidency decided:
- to rename (rightly so) the Community patent as the unitary patent;
- to place translation-related issues (which often give rise to controversy) in a separate agreement;
- to request an opinion from the Court of Justice regarding the planned agreements.
This made it possible (at the end of 2009) to reach an agreement on the non-sensitive aspects of the agreements (i.e., everything except 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 may be translated into any official language of a Contracting State;
- In the event of a dispute, judges will take into account whether the infringer knew or should reasonably have known they were infringing due to the lack of translation.
Nevertheless, this was not enough, and in November 2010, the Member States of the Union acknowledged that they could not reach a compromise.
Enhanced cooperation
For this reason, enhanced cooperation (Article 20 TEU) was launched at the request of 12 Member States (quickly rising to 25, except Italy and Spain).
Authorization for this enhanced cooperation was granted by the Council on March 10, 2011.
Italy and Spain (which opposed the planned translation system and thus did not participate in the enhanced cooperation) brought an action before the Court of Justice of the Union to annul the Council’s decision, but on April 16, 2013, the Court dismissed their claims (C-274/11 and C-295/11).
In parallel, on December 17, 2012, Regulation 1257/2012 « implementing enhanced cooperation in the area of the creation of unitary patent protection » was adopted, along with Regulation 1260/2012 (on the same day) concerning translations.
These two regulations were challenged by Italy and Spain. However, once again, the Court of Justice (C-146/13 and C-147/13) dismissed their claims on May 5, 2015.
These decisions ultimately led Italy to request participation in the enhanced cooperation, which was formally accepted on September 30, 2015.
Challenges with the United Kingdom
In 2016, the United Kingdom decided to leave the European Union.
This created some knots in the minds of the brightest legal experts in EU law…
Indeed, before their departure in March 2020, the British still ratified the UPC Agreement in 2018.
Several questions then arose:
- Could the United Kingdom participate in enhanced cooperation despite its departure, given that it ratified before leaving? (In reality, this question may not find a definitive answer, as the UK indicated it did not ultimately wish to participate in this cooperation.)
- Does the UK’s ratification count toward the calculation in the preamble of the UPC Agreement, which requires ratification by 13 Member States and the three Member States with the highest number of European patents at the time of the agreement’s signing?
- Is it possible to change the location of the central division currently based in London without having to restart the ratification process? Could Article 87(2) of the UPC Agreement be used to amend this agreement?
- What will become of the British judges who were appointed?
Challenges with Germany
Regarding Germany, several constitutional questions were raised, both in form and substance.
While the substantive issues were dismissed by the Constitutional Court (Bundesverfassungsgericht), the Court ruled in March 2020 that the German ratification was invalid because Parliament should have given its approval with a two-thirds majority (in this case, only 35 parliamentarians were present).
While this formal issue does not seem too difficult to overcome, it will likely be necessary to wait until the end of the Coronavirus crisis for the German Parliament to address this matter…