Union brands, which have a unitary effect in all EU member states within the common market, have proven to be important tools in European competition. The final legal jurisdiction has been shifted from the national courts to the ECJ as the final instance. However, a corresponding instrument on the patent side is still missing. All efforts to create a corresponding Union patent as a counterpart to the Union trademarks have so far failed, despite great political effort.

Disadvantages of the status quo

A Union patent – more precisely, a “European patent with unitary effect” – would be an alternative and complement to the European patent. Its main disadvantage is that it is a bundle patent. This means that although the examination procedure is conducted centrally before the European Patent Office, the patent bundle opens up after grant. In other words it breaks up into a large number of national patents.

This has serious disadvantages for a potential infringer: If he wants to defend himself against enforcement, he has to attack each of these rights separately in a national nullity procedure. This is time-consuming and expensive. It can also lead to divergent decisions due to the non-harmonized legal standards in the EPC member states.

The „European patent with unitary effect”

At first sight, the solution seems to be obvious: a Union patent with

  • the same legal effect throughout the EU;
  • centralization in the field of invalidity actions and infringement by a separate court; and
  • a pragmatic language regime based on the London Agreement to keep translation costs within limits.

Text of the London Agreement: https://web.archive.org/web/20090605230153/http://www.epo.org/patents/law/legal-texts/london-agreement_de.html

This is not going to be an easy way…

The fact that the Union patent has not yet become a reality is due to an absurd language dispute. In order to be able to enforce the patent in all member states, a compromise is needed. The question is whether the full patent or only its claims must be translated into some or even all of the languages of the EPC states. The more extensive the language regime is the more expensive and less attractive the procedure will be. 

A pragmatic solution would have been to leave it at the three official languages of the EPC. Further translations would be required only if the Union patent is to be enforced in a country which has another official language.

However, this solution failed mainly because of Italy and Spain. These two countries required a full translation into their national languages. Instead, a „coalition of the willing“ now wanted to launch a Union patent with an initially territorially limited effect. But even this proved to be difficult.

Law stumbles over a formal hurdle

The Düsseldorf patent attorney Ingve Stjerna filed a suit against a correspondingly limited Union patent in 2017. His complaint cites both formal and substantive infringements of Common Law. This was not even about the EU regulation on the Union patent as such, but the separate intergovernmental agreement on patent courts (UPC).

In 2013, the Bundestag had ratified this agreement by law in a session in which not even 40 Members of Parliament were present. According to Stjernas, however, the law should have been passed by a two-thirds majority.

On the recommendation of the Federal High Court, President Steinmeier had therefore not signed the law for the time being.

Germany is once again on the brakes

Last week the German Federal Constitutional Court (“Bundesverfassungsgericht”) published its long-awaited judgement  (2 BvR 739-17).

Link to the decision: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/02/rs20200213_2bvr073917.html

Already on 13 February 2020 the Court decided that the complaint is admissible and well-founded. The senate also confirmed an infringement of the requirement of a qualified majority for the implementing legislation under the German Constitution. Hence, the complaint succeeded because the implementing legislation was not adopted with the required consent of two thirds of the members of the Bundestag.

The Federal Constitutional Court found the further grounds for the complaint inadmissible.

The decision was taken with a 5:3 majority of the Senate. Three judges expressed a dissenting opinion.

Quo vadis?

Ratification of both the EU Regulation on the Community Patent and the Agreement on Patent Courts remains mandatory to bring both agreements into force.  It is to be expected that the UPC will have to be brought before both chambers once again. Required is a two-thirds majority, so that the Union patent can at least have an effect on the scope of application of the states that want to participate in this project.

It is not possible to say when this will happen and whether there will be a corresponding majority. There are more urgent tasks at the moment, so the following statement has lost none of its accuracy:

The time lag to the Union patent remains constant.

This blog contains material taken from the web page of the Institute of Professional representatives before the European Patent Office (EPI):