On 16 October 2013, Science Business published an article entitled “Europe’s unitary patent to launch in 2015 – but will companies embrace it?” addressing the debate on the risks of the future Europe’s unitary patent, after companies had expressed different concerns on the occasion of a Science Business roundtable, “Patents in Europe: What’s next?”.
The main issues raised by companies include the following:
1. The new EU patent system may make companies an easier target for patent trolls (i.e., firms whose core business is buying technology patents and filing patent-infringement suits), similarly to what it happensin the US. Senior EU officials including Jonathan Faull, Director-general, Internal Market and Services at the European Commission,and patent experts, such as Margot Fröhlinger, Principal Director of Patent Law and Multilateral Affairs at the European Patent Office in Munich, stated that that the rules governing the new court (e.g. (introduction of legal fees to pay by the loosing party, no contingency fees for lawyers and no risk of triple damages as in the US system) constitute safeguards that will discourage patent trolls from filing the same kind of the abusive patent infringement cases that are plaguingUS technology companies.
2. Overall cost of maintaining a unitary patent through annual renewal fees (specially for SMEs). This is one of the toughest negotiating points remaining in creation of the unitary patent, as they are a key source of income for member states and the European Patent Office. In order to solve this problem. In June 2014 and probably onwards, the European Patent Office will lead the negotiations with member state patent officials on this issue.
3. The unitary court’s three main seats (Paris, Munich and London) may diverge in their legal opinions based on local tradition, paving the way for “forum shopping” by companies seeking a more favorable treatment in a given country. Alexander Ramsay, vice chairman of the Preparatory Committee for the Unified Patent Court and deputy director of the Division for Intellectual Property and Transport Law at the Ministry of Justice in Sweden, explained that there will be only one court and one jurisprudence assured through the second instance.
4. The existence of two parallel systems, given that the unified patent court will not immediately replace the existing system of national courts, might lead to a big complexity, specially for SMEs. MEP Member Carvalho shared this concern.
5. The approval process is moving slowly. Only one country, Austria, out of the 25 European countries that signed an international intergovernmental agreement in February to create the unified court, has ratificated the agreement. To become effective, the ratification from at least 13 countries is required.
More information is available here.