Leading intellectual property lawyers in the UK have reacted coolly to the unitary patent and unified patent court process approved by the European parliament on Tuesday.
‘No one can doubt that having a single system is, in principle, a good idea,’ said Claire Bennett, partner in international firm DLA Piper's intellectual property and technology practice, ‘but, the devil is in the detail of how the system has been implemented.’
Adrian Toutoungi, partner and patent law expert at national firm Eversheds, described parliamentary approval for the unitary patent and the court as ‘certainly a breakthrough’. However, he said the reform is ‘a huge gamble with Europe’s economic future’.
Richard Willoughby, patents solicitor at specialist intellectual property firm Rouse, commented that the new process has more hurdles to cross before becoming reality.
‘Ratification of the court agreement must take place before anything begins and that is going to take a substantial amount of time as it will require 13 states to ratify. Furthermore, that group must include the UK, France and Germany.
‘Importantly, while the European Patent Office (EPO) could easily deal with the granting process, we haven’t even begun the process of setting the court system up.’
Willoughby also questioned the level of demand for a unified patent. ‘The aim of cutting administrative costs for IP protection is based on the assumption that patentees want patent protection across the whole of the EU. At the moment, experience tells us that’s a minority of situations, and extremely rare for small and medium-sized businesses in particular,’ he said.
He also described as a ‘myth’ the idea that the reform would create a single patent court, based in Paris, London and Munich.
He said those will be only the locations of the central division, which will have limited jurisdiction. The vast majority of cases, infringement actions, will be started in the local or regional division, which could be in any member state that wants one, he said.
Willoughby warned that big companies might prefer to opt out of the system rather than risk valuable intellectual property in an untried court system.
Bennett expressed similar fears, saying that the new system would not harmonise enforcement. ‘The problem is that the proposals attempt to provide a single court system, where the application of the law is not harmonised between countries. In the existing system a patent holder has the certainty that the German designation will be subject to German law in German courts under a German approach.
‘Under the new system that certainty is swept away, with the applicable law, court location, language and approach being dependant on various factors, not all within a business's control, and with a potentially "multi-cultural" result.’