ESP Wiki is looking for moderators and active contributors!

Difference between revisions of "Unified Patent Court"

(Consequence: a court of pro-software-patent judges: * [http://www.eplawpatentblog.com/eplaw/2013/05/eu-upc-update-uk-and-denmark.html EU - UPC Update (UK and Denmark)], 24 May 2013, '''eplaw pate)
(Procedural details and differences between the two: corrections)
(9 intermediate revisions by 2 users not shown)
Line 1: Line 1:
 
{{infobox europe}}
 
{{infobox europe}}
 
:''For ESP's page on this, see: http://endsoftwarepatents.org/unitary-patent''
 
:''For ESP's page on this, see: http://endsoftwarepatents.org/unitary-patent''
The '''European Union patent with unitary effect''' and the '''Unified Patent Court''' are two parts of an EU proposal which takes competence for patent cases away from the national courts and transfers it to a new pro-patent court with no independent appeal system for its rulings.  One expected outcome is that [[software patents]] may become enforceable throughout the [[European Union]].  The stated aim is to [[unifying Europe's patent systems|unify Europe's patent systems]].
+
The '''European patent with unitary effect''' (hereafter '''unitary patent''') and the '''Unified Patent Court''' are two separate but related proposals to make patents cheaper, litigation more profitable, and possibly install a complete court system with a pro-patent bias.
  
The proposal also involves creating a single patent which would be valid in many EU member states, without translation.  This proposal took over from the '''Community Patent''' since the Lisbon Treaty and is often called the '''EU patent''' or the '''unitary patent'''.<ref>http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1714&format=HTML&aged=0&language=EN&guiLanguage=en</ref><ref>{{cite web|url=http://www.premiercercle.com/sites/ip2010/overview.php|title=Brussels event about patents|quote=The Community Patent, now renamed EU Patent, has made too little progress}}</ref>
+
==Procedural details and differences between the two==
  
As of August 2012, [[Spain]] and [[Italy]] continue to reject the proposals and the EU intends thus to make them binding in only the other 25 member states.
+
The '''unitary patent''' is an EU system, based on EU regulations 1257/2012 and 1260/2012, which is not in effect.
  
==Background: Community Patent (2000-2010)==
+
The '''Unified Patent Court''' is a proposed court based on an international agreement.  All EU members states can become parties but the agreement does not involve the EU.
 +
 
 +
All of the involved EU countries will be participants in none or both agreements.
 +
 
 +
The Unified Patent Court is still being ratified by the agreeing member states.  The unitary patent will only come into force after the Unified Patent Court Agreement does.  The two regulations which enable the unitary patent were also the subject to two rejected actions on annulation introduced by Spain before the EU Court of Justice. 
 +
 
 +
The new court may also have a pro-patent bias and thus increase the risk of [[software patents]] becoming enforceable.  Unitary patents will be officially published in two languages: either English or another EU language.  Speakers of other languages have increased risk of inadvertent infringement and increased costs of patent clearance searches, except in the UK where -unlike in the unitary patent system- presently also French and German language European patents are accepted.
 +
 
 +
This proposal took over from the '''Community Patent''' since the Lisbon Treaty and is often called the '''EU patent'''.<ref>http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1714&format=HTML&aged=0&language=EN&guiLanguage=en</ref><ref>{{cite web|url=http://www.premiercercle.com/sites/ip2010/overview.php|title=Brussels event about patents|quote=The Community Patent, now renamed EU Patent, has made too little progress}}</ref>  The term "European patent" refers to the system in place since 1973.  A unitary patent is a type of European patent.  The EPO must first grant the European patent, and then the applicant can request that it be given unitary effect.
 +
 
 +
As of 2015, the unitary patent has been rejected by Spain. The Unified Patent Court Agreement was not signed by by Croatia (who wasn't a member when it was signed), Poland and Spain.
 +
 
 +
The stated aim is to [[unifying Europe's patent systems|unify Europe's patent systems]] for reasons of efficiency.
 +
 
 +
===Current status: ratifications===
 +
 
 +
To enter into force, the agreement on the Unified Patent Court has to be ratified by at least 13 member states including the [[United Kingdom]], [[France]] and [[Germany]].<ref>{{cite web|url=http://www.eplawpatentblog.com/eplaw/2013/08/eu-austria-first-ratification-of-the-agreement-on-a-unified-patent-court.html|title=EU - Austria: First ratification of the Agreement on a Unified Patent Court}}</ref>
 +
 
 +
In August 2013, [[Austria]] became the first member state to ratify the agreement; while France followed in 2014.<ref>{{lang de}} http://www.bmeia.gv.at/aussenministerium/pressenews/presseaussendungen/2013/spindelegger-neues-eu-patent-bringt-innovationsschub-fuer-die-eu.html</ref><ref>{{cite web|url=http://www.eplawpatentblog.com/eplaw/2013/08/eu-austria-first-ratification-of-the-agreement-on-a-unified-patent-court.html|title=EU - Austria: First ratification of the Agreement on a Unified Patent Court}}</ref>
 +
 
 +
===Background: Community Patent (2000-2010)===
  
 
The Community Patent was proposed by the [[European Commission]] in 2000 as "Rule of the Council" document number 2000/0177 (CNS), COM(2000)412 FR final.
 
The Community Patent was proposed by the [[European Commission]] in 2000 as "Rule of the Council" document number 2000/0177 (CNS), COM(2000)412 FR final.
Line 19: Line 39:
 
The [https://www.unitary-patent.eu/node/5 amendments proposed by unitary-patent.eu] apply both solutions: an exclusion in amendments 5 and 6, and a shield in amendment 8.
 
The [https://www.unitary-patent.eu/node/5 amendments proposed by unitary-patent.eu] apply both solutions: an exclusion in amendments 5 and 6, and a shield in amendment 8.
  
==Relation to the ECJ==
+
==Unified Patent Court==
 +
 
 +
===Relation to the ECJ===
  
 
According to European Commissioner Charlie McCreevy, May 18th 2006, the Community Patent would give the EU Court of Justice authority in interpreting the [[EPC]]:
 
According to European Commissioner Charlie McCreevy, May 18th 2006, the Community Patent would give the EU Court of Justice authority in interpreting the [[EPC]]:
Line 27: Line 49:
 
</blockquote>
 
</blockquote>
  
==Consequence: a court of pro-software-patent judges==
+
===Consequence: a court of pro-software-patent judges===
  
 
By creating a court with [[patent lawyers]] as judges, this proposal will lead to a set of rulings in favour of expanding patent law (giving a "maximal" interpretation of the law).  This is how software patents came into existence in the USA via the creation of the [[CAFC]] in 1982.
 
By creating a court with [[patent lawyers]] as judges, this proposal will lead to a set of rulings in favour of expanding patent law (giving a "maximal" interpretation of the law).  This is how software patents came into existence in the USA via the creation of the [[CAFC]] in 1982.
  
 
Even if the European Court of Justice would have jurisdiction to review the new court's rulings, we might see the principle of [[settled expectations]] causing the European Court of Justice to follow the new court.
 
Even if the European Court of Justice would have jurisdiction to review the new court's rulings, we might see the principle of [[settled expectations]] causing the European Court of Justice to follow the new court.
 
==May 2013==
 
 
* [http://www.eplawpatentblog.com/eplaw/2013/05/eu-upc-update-uk-and-denmark.html EU - UPC Update (UK and Denmark)], 24 May 2013, '''eplaw patent blog'''
 
  
 
==Related pages on {{SITENAME}}==
 
==Related pages on {{SITENAME}}==
  
 +
* [[London Protocol]] - reduced translation requirements, paving the way for the unitary patent
 
* [[Unified European patent jurisdiction overview]]
 
* [[Unified European patent jurisdiction overview]]
* [[United Patent Litigation System]]
 
* [[European Patent Litigation Agreement]]
 
  
 
==External links==
 
==External links==
Line 62: Line 79:
 
===Article selection, newest first===
 
===Article selection, newest first===
  
 +
* [http://www.eplawpatentblog.com/eplaw/2013/05/eu-upc-update-uk-and-denmark.html EU - UPC Update (UK and Denmark)], 24 May 2013, '''eplaw patent blog'''
 
* [http://www.patentlyo.com/patent/2012/08/a-new-highest-patent-court-for-europe-not-as-long-as-the-court-of-justice-of-the-eu-is-here.html A new highest patent court for Europe? Not as long as the Court of Justice of the EU is here], 23 Aug 2012, '''Dimopoulos and Vantsiouri''' (on Patently-O)
 
* [http://www.patentlyo.com/patent/2012/08/a-new-highest-patent-court-for-europe-not-as-long-as-the-court-of-justice-of-the-eu-is-here.html A new highest patent court for Europe? Not as long as the Court of Justice of the EU is here], 23 Aug 2012, '''Dimopoulos and Vantsiouri''' (on Patently-O)
 
* [http://www.patentlyo.com/patent/2012/08/european-unified-patent-court.html The Proposed Unified Patent Court for Europe: conditio sine qua non for a Unitary Patent or unavailing venture into the unknown?], 15 Aug 2012, '''William Bull''' (on Patently-O)
 
* [http://www.patentlyo.com/patent/2012/08/european-unified-patent-court.html The Proposed Unified Patent Court for Europe: conditio sine qua non for a Unitary Patent or unavailing venture into the unknown?], 15 Aug 2012, '''William Bull''' (on Patently-O)
Line 74: Line 92:
  
 
{{footer}}
 
{{footer}}
[[Category:European Union]]
+
[[Category: European Union]]

Revision as of 16:23, 8 December 2015

For ESP's page on this, see: http://endsoftwarepatents.org/unitary-patent

The European patent with unitary effect (hereafter unitary patent) and the Unified Patent Court are two separate but related proposals to make patents cheaper, litigation more profitable, and possibly install a complete court system with a pro-patent bias.

Procedural details and differences between the two

The unitary patent is an EU system, based on EU regulations 1257/2012 and 1260/2012, which is not in effect.

The Unified Patent Court is a proposed court based on an international agreement. All EU members states can become parties but the agreement does not involve the EU.

All of the involved EU countries will be participants in none or both agreements.

The Unified Patent Court is still being ratified by the agreeing member states. The unitary patent will only come into force after the Unified Patent Court Agreement does. The two regulations which enable the unitary patent were also the subject to two rejected actions on annulation introduced by Spain before the EU Court of Justice.

The new court may also have a pro-patent bias and thus increase the risk of software patents becoming enforceable. Unitary patents will be officially published in two languages: either English or another EU language. Speakers of other languages have increased risk of inadvertent infringement and increased costs of patent clearance searches, except in the UK where -unlike in the unitary patent system- presently also French and German language European patents are accepted.

This proposal took over from the Community Patent since the Lisbon Treaty and is often called the EU patent.[1][2] The term "European patent" refers to the system in place since 1973. A unitary patent is a type of European patent. The EPO must first grant the European patent, and then the applicant can request that it be given unitary effect.

As of 2015, the unitary patent has been rejected by Spain. The Unified Patent Court Agreement was not signed by by Croatia (who wasn't a member when it was signed), Poland and Spain.

The stated aim is to unify Europe's patent systems for reasons of efficiency.

Current status: ratifications

To enter into force, the agreement on the Unified Patent Court has to be ratified by at least 13 member states including the United Kingdom, France and Germany.[3]

In August 2013, Austria became the first member state to ratify the agreement; while France followed in 2014.[4][5]

Background: Community Patent (2000-2010)

The Community Patent was proposed by the European Commission in 2000 as "Rule of the Council" document number 2000/0177 (CNS), COM(2000)412 FR final.

On October 30th 2009, a new proposal was published: Axel Horns' overview.

Amendments to fix this

This proposal aims to make patent acquisition and litigation more efficient and more profitable for patent holders. With this goal, the software patent problems can't be fixed by minor improvements. To save software, we need amendments to exclude software from patentability or to shield software from patent litigation.

The amendments proposed by unitary-patent.eu apply both solutions: an exclusion in amendments 5 and 6, and a shield in amendment 8.

Unified Patent Court

Relation to the ECJ

According to European Commissioner Charlie McCreevy, May 18th 2006, the Community Patent would give the EU Court of Justice authority in interpreting the EPC:

an important feature of the proposed Community patent system is the accession of the Community to the EPC. By this, the convention becomes part of the Community acquis and subject to interpretation by the European Court of Justice (ECJ). The ECJ is not bound by the case law developed by the EPO and is free in its interpretation of the provisions of the EPC[6]

Consequence: a court of pro-software-patent judges

By creating a court with patent lawyers as judges, this proposal will lead to a set of rulings in favour of expanding patent law (giving a "maximal" interpretation of the law). This is how software patents came into existence in the USA via the creation of the CAFC in 1982.

Even if the European Court of Justice would have jurisdiction to review the new court's rulings, we might see the principle of settled expectations causing the European Court of Justice to follow the new court.

Related pages on ESP Wiki

External links

EU documents, newest first

Overviews

Article selection, newest first

References