The unitary European patent system (“community patent”) is a new simplified system of protection for inventions within the scope of the countries signatory to the European Patent Convention. The characteristic features thereof are mainly the uniform protection of a single patent in the whole of the Community territory and the establishment of one special court in this field.
The current system, called the “European patent”, which is not the same as the “community patent” guarantees a defined protection under the national law of each state. For this reason, far from being a uniform title, this system merely allows the filing of a centralised application via the European
Patent Office (“EPO”) and the individual designation of each country where protection is desired. Among many other difficulties, the linguistic obstacle which this system brings with it should be pointed out, given that in order to obtain protection in all of the EU countries, it is necessary to translate the patent into all of the official languages (which leads to very high costs). This stumbling block would be solved with the community patent, which designates English, German and French as the only official languages, with the corresponding unitary protection without the need for further translation.
However this is precisely the reason why Spain (and also Italy) have opposed the community patent system up until now, arguing that the exclusion of their respective languages implies negative discrimination. In this regard, Spain brought two actions before the Court of Justice of the European Union (“CJEU”) arguing in short (i) article 118 of the Treaty on the Functioning of the European Union does not constitute a legal base for the approval of Regulation 1257/2012 and (ii) the violation of the principle of non discrimination for language reasons in relation to Regulation 1260/2012.
Nevertheless, pursuant to two judgements passed on 5th May 2015 the CJEU has rejected both appeals filed by Spain. On one hand, it observes that the objective of Regulation 1257 is not by any means the regulation of the requisites for granting community patents and that, in any case, unitary protection is adequate for avoiding divergences related to protection via a patent in the participating states. On the other hand, it points out that the language regime established by the Regulation makes the access to the community patent more simple and lest costly, maintaining the necessary balance between the interests of the applicants of the community patent and those of other companies.
Ultimately, we are looking at another setback for Spain’s aspirations regarding the community patent system and that together with Italy, it continues to be one of the only countries that has not become part of the project.
Currently, the ratification of the Agreement on the Unitary Patent Court by the signatory states for the entering into force of the community patent is pending, which requires the signature of 13 countries, and specifically the adhesion of Germany, The United Kingdom and France, which is anticipated in 2016 or 2017.
Vilá Abogados
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15th May 2015
