There will be a Unitary Patent, a Unified Patent Court, and they will both change everything for the best in the way you protect, manage, litigate, and exploit your IP in Europe.
However, this is not as obvious and straightforward as it seems. But one day you will need the system, and the system will need you to trust in its features.
First, such a statement fails to depict the long and chaotic story behind the "Unitary" or "Community" Patent as an important milestone in the construction of Europe.
Roughly previewed in Recommandation 23 of the Council of Europe establishing the basis of the EPO in 1949, then openly announced for the first time in November 1959, the Unitary Patent nearly came into existence under a different name after the signing of the Community Patent Convention (CPC) in December 1975. Sadly, not enough countries ratified the CPC, and all subsequent attempts to revive the project failed until now, 40 years later.
"We will look at enhanced cooperation" revealed Commissioner for Internal Market & Services Michel Barnier on 2 December 2010 in introduction of the 5th pan-European Intellectual Property Summit (www.ipsummit.info), organized by Premier CercleTM in Brussels.
And the challenge has been held. And now, except for superstitious minds, the project is closest to completion than it has ever been in history.
Second, the road to the full implementation of the UP and the UPC is not yet exempted of any risks and pitfalls.
Thanks to mid-April's decision of the CJEU to reject Spain and Italy's claims related to language restrictions in EU law, the Unitary Patent project has moved again one step further.
Still, there are remaining questions ahead, notably regarding compliance to Brussels-II regulation, and ratification of the UPC agreement by at least 13 of the 25 participating states. Which, this time, seems largely feasible.
And then, there is the third concern, more practical, therefore more serious: what will be the core efficiency of the new patent system? It will depend on at least four important considerations:
1. Tricky choices that must be made during the full implementation phase, including drafting the appropriate rules of procedures for the Unified Patent Court;
2. Total costs v. return on investment, both from institutional (European and national) and from a user's perspectives - in other terms, will it pay off? Will it live up to its promises and become a catalyst for innovation, growth and jobs?
3. Preparedness of the key institutional players: patent and trademark offices of course, but also, and most importantly, the judges. Not all of them do speak English. Also, not all the countries do have an experience of technical expert judges. Who will be designated? According to which criteria? Which national and local jurisdictions will be established? How will the training of judges be organized? Will certain national administrative practices have to change?
4. Last but not least, what will be the willingness of the right holders to use the new patent system massively, and in a proper manner? This is where lies the most intricate difficulty.
As the new European system doesn't already exist, it is not yet proven by definition, which, at least for now, means a lot of uncertainties. When will the system come into production? Who will bear the risks to be among the first users? Will reckless behaviour be rewarded? Or, on the other end, will "opt-out" become the norm? All in all, what are the arguments which must be pushed in order to make sure that most of the large patent holders will come into play?
On Friday 28 June, a full day of great debates will be held at the headquarters of INPI, the French patent & trademark office, right near Paris, France. There's no better place than the capital that will host the main seat of the Unified Patent Court, to organize such a forum.
Come and voice your concerns. Hear the practical answers from the officials of the European Commission, European Patent Office and national IP offices, the EU Parliament, Judges from various countries, industrial companies large and small, and even the economists.
Looking forward to meet you in this unique occasion,
in association with INPI (Institut National de la Propriété Industrielle),
knowledge partner Hoyng Monegier LLP,
partners Reiman Osterrieth Köhler Haft and Powell Gilbert LLP.
You might also be interested in : www.ipsummit.info ; www.competitionsummit.com