In October, Italy dropped its opposition to the European Union’s Unitary Patent legislation and joined the 25 other countries that have agreed to the regulations set forth in EU Regulations 1257/2012 and 1260/2012, bringing the Unitary Patent system one step closer to realization.
The Unitary Patent system seeks to streamline and simplify the current patent system in Europe. Currently, each state issues and enforces its own patents within its jurisdiction, which means that patents must be obtained through each national patent office for Europe-wide protection. It is possible to obtain a “European Patent” from the European Patent Office (EPO), but this is simply a bundle of national patents, which must be approved by their respective national patent offices — and those nations’ courts are the only available forums for enforcement. This process is both lengthy and expensive, often costing around €36,000 to secure patent validation in all the EU member states, according to IP Watchdog. The Unitary Patent system would be a comprehensive and alternative process by which the EPO could issue patents that would be enforceable in all of the participating states. A specialized Unified Patent Court would handle litigation arising out of patent disputes. By creating this single system for the issuance and enforcement of patents, the Unitary Patent legislation hopes to increase efficiency and consistency in intellectual property rights across Europe.
Until recently, Italy had been one of the strongest opponents of the Unitary Patent. Along with Spain, it challenged the legislation in 2013 before the European Court of Justice, claiming that the new regulations would prove detrimental to the social and economic cohesion of the European Union. The challenge, however, proved unsuccessful, and Italy did not join Spain in its subsequent unsuccessful challenge that claimed that the Unitary Patent’s translation policies are discriminatory against those who do not speak one of the system’s three official languages (French, English, and German), into which all patents must be translated.
Thirteen countries must ratify the legislation in order for it to take effect, and thus far only eight states have done so, but many believe that the recent developments in favor of the Unitary Patent system signal that it is drawing closer to becoming a reality. IP Watchdog notes that, as Europe's fourth-largest market — both in terms of gross domestic product and patents issued — Italy's agreement to the terms of the Unitary Patent legislation is a "huge step forward." The President of the EPO, Benoît Battistelli, said that “Italy’s accession will … render the Unitary Patent more attractive to companies from other European countries and from across the globe. Italy’s support for the system may impact intellectual property around the world, as multinational companies will have increased incentives to enforce their intellectual property rights through European patents. In addition to the newfound support from the Italian government, Lexology notes that with the "blessing" of the new regulations by the European Court of Justice earlier this year when it dismissed Spain's challenges, the regulations could be implemented as early as February 2017.
While many commentators think that the ratification and implementation process will proceed, there are still significant hurdles to be overcome. The continued opposition of Spain and Croatia is a non-trivial barrier to the efficacy of the system. Although the legislation could be ratified without Spanish or Croatian support, the regulations only pertain to countries that have signed onto the agreement. Thus, anyone wanting patent protection across Europe will have to go through national patent offices for any countries not party to the Unitary Patent agreement, even after the new system has been implemented. As IP Watchdog explains, if Spain and Croatia do not join, “those wishing to protect their IP in those countries will have to follow the traditional EPO and validation process on top of the UP.” A further challenge could present itself if the United Kingdom chooses to exit the European Union. If the UK leaves the EU, the Unitary Patent rules will no longer apply there, significantly decreasing the system’s attractiveness as an avenue for intellectual property protection.
The remaining obstacles notwithstanding, Italy’s support for the Unitary Patent system is a welcome boost to those hoping to make patents easier to obtain and enforce across Europe. It appears as though it is no longer a matter of whether the European Union will have a Unitary Patent system, but rather just a matter of when.
Shailin Thomas is an affiliate of the Berkman Center for Internet & Society and a 1L at Harvard Law School.