History: The creation of the Unitary Patent and the Unified Patent Court

The legal basis of the current European patent system lies in the European Patent Convention (EPC) of 1973, which established the European Patent Office (EPO). The EPO acts as a receiving office for the member states and provides a common examination procedure for all of the member states of the EPC, currently 38 in number, including the 28 EU member states. However, even though the procedure for granting a patent is common in all 38 EPC states, the enforcement of patent rights is not. All European patents must be nationally validated and are therefore subject to litigation.

For decades the EU member states have discussed the creation of a patent that covers all the member states, i.e. a unified enforcement process in all EU states, to replace the nationally litigated rights of each member state.

On 17 December 2012 the European Council and the European Parliament finally reached a formal agreement on the two EU regulations that provided for the creation of the enhanced cooperation for the Unitary Patent. These regulations were challenged by Spain and Italy, but their actions were later rejected by the European Court of Justice.

Enhanced cooperation within the EU makes provision for a minimum of nine member states to cooperate within the structures of the EU without all member states being involved. It is designed to overcome deadlocks, where a proposal is blocked by the veto of for exampel, an individual state that does not wish to be part of the initiative. The need to establish enhanced cooperation can be traced back to the 1970s, when the idea of creating an EU or Community patent covering all EU member states – in comparison to the EU trademark and the Registered Community Design – was first conceived.

On 15 December 1975 the Convention for the European Patent for the Common Market was signed at the Luxembourg Conference, with the participation of Belgium, Denmark, Germany, France, Ireland, Italy, Luxembourg, the Netherlands and the United Kingdom. The main features of the convention were that the European patent should have a unitary character, translation of the claims and a specification, that special instances at the EPO were to be created (e.g. Revocation Divisions and Boards) and that the national courts should be used for deciding infringement actions. Over the years several attempts were made to design a Community patent, but in 2004 the Council failed to agree on the details of a Regulation on the Community patent, in particular on the time limit for translating the claims.

The enhanced cooperation that was estalished now allows for those EU member states wishing to take part in the Unitary Patent and the UPC to ratify the international Agreement on a Unified Patent Court (UPCA). The UPCA is an intergovernmental treaty between the participating states outside the framework of the EU, published by the Council of the European Union on 11 January 2013. The UPCA is open for accession to all EU member states and was first signed on 19 February 2013 by 24 EU member states, including all the states participating in the enhanced cooperation; subsequently Italy and Bulgaria signed the agreement, leaving only Poland, Spain and Croatia. Following ratification by at least 13 states, which must include Germany, France and the UK, the provisions for the Unitary Patent and the language regime will enter into force.