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EU unitary patent and Unified Patent Court

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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 unify Europe's patent systems.

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.[1][2]

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.


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.

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[3]

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 en.swpat.org

External links

EU documents, newest first


Article selection, newest first


  1. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1714&format=HTML&aged=0&language=EN&guiLanguage=en
  2. "Brussels event about patents". http://www.premiercercle.com/sites/ip2010/overview.php. "The Community Patent, now renamed EU Patent, has made too little progress" 
  3. http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2006-1625&language=EN

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