Thursday, September 8, 2011

Stale News: Unitary Patents in Europe

On June 27th of this year, the European Union Council seems to have leapt a step closer to the creation of a “Unitary Patent System” in Europe. The creation of a unitary patent system would mean unitary treatment of European patents after their grant.

The European Patents granted presently can be centrally opposed within 9 months of grant; however, after the expiry of this period, each of the European patents has to be opposed or revoked nationally. In other words, different national standards are applicable to judge national patents granted by the same authority- EPO.

In contrast, unitary patent protection refers to uniform treatment of the patents in all contracting EU states even after the grant. In other words, the treatment of the patent and its scope will be uniform in all contracting states of the treaty. This also means that only a centralized revocation of the unitary patent is possible.

From a TRIPS point of view, contracting states end up waiving their domestic flexibilities to set and apply their own standards for patent protection. However, the consideration that seems to motivate EU States to adopt this approach is the creation of an “Internal Market”, which requires evolving a cheaper and access-friendly patent system which is free from the legal unpredictability arising from national treatment of patents.

I will discuss the finer points of the unitary patent protection system in another post, what is however worth mentioning is that Italy and Spain have bitterly opposed the proposed system, one prominent reason for which is the trilingual system sought to be adopted for translation- English, French and German.

Also, on a different note, Richard Stallman, father of the Open Source movement and its chief ideologue, has expressed fear that Unitary Patent Protection may end up facilitating proliferation of software patents in Europe and trigger a software war, similar to the one being duked out in the US.

According to him, European Commission’s proposal on software patents, although ostensibly opposes grant of patents to software, goes easy on the “inventive step” requirement. He says that the Commission merely requires the presence of a physical step, instead of insisting that the inventive step must be present in the physical step (similar to the material transformation test of the US).

I haven’t come across the text of the EC proposal yet, so I am hoping there is some truth in what Stallman says. I’ll post more on this interesting and critical development in the days to come. 

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