Williams Powell

British and European Patent and Trade Mark Attorneys

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Williams Powell

11 Staple Inn
United Kingdom

T: +44 207 242 7005

F: +44 207 242 7115

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Brewdog in Doghouse
In a recent UK opposition decision.  Brewdog have been denied trade mark registration for BREWD...
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Recent News

UK Ratifies Unified Patent Court (UPC) Agreement
The United Kingdom's Intellectual Property Minister Sam Gyimah announced on World IP day, 26 April 2018, the ratification by the UK of the Unified Patent Court (UPC) Agreement. The UPC agreement also ...
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UK ready for the Unified Patent Court
On 8 February 2018, the final legislation needed for the UK to be ready for the Unified Patent Court was passed.  The Queen and her Privy Councillors signed off the Order which is available here ...
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Brexit to have no effect on UKs dealings with the EPO
Brexit will have no consequence on the UK in connection with the European Patent Office (EPO), either for applicants or for Patent Attorneys in the UK, as confirmed by the EPO. In its notice dated 25...
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Delays to Opening of Unified Patent Court?
It was understood that UK Government had planned to ratify the UPC agreement in May 2017 so that the Unified Patents Court could open by the end of the year.  However, that timetable now looks li...
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There have been proposals for a European Community wide patent at least as far back as 1977 yet the obstacles have never been overcome. However, recent developments mean that a compromise position may be within reach. But is the compromise enough? Members of the EU Parliament think not.

Although it has been discussed many times over the years, there is currently no “Community Patent”.  

The current European patent system differs notably from the European Community Trade Mark and Registered Design systems. Community Trade Marks and Registered Designs, once granted, result in a single right covering all EU member states. Advantageously, only one annual renewal fee is payable and, if states join the EU, these are retro-actively added to the protection provided by the Trade Mark or Registered Design.

In contrast, the current European patent system was established by a multi-lateral agreement of European states in 1977.  Although many of the member states are subject to EU Jurisdiction, the European Patent Office is proudly independent of the central EU governing bodies and courts.

At present, grant of a European Patent results in a bundle of essentially separate, nationally-enforceable, rights.  Each of these rights are subject to annual maintenance fees and these result in far higher expenses in maintaining rights than a Community trademark or Registered Design. 

Member states can require translation of a European Patent into their national language on grant, although many have watered down or dispensed this recently. 

Enforcement of a European Patent requires litigation through the national courts of the right in question. Therefore, while examination may be centralised and uniform, enforcement falls under national law and rights of a patentee can differ from country to country. 

The European Commission considers the difference in rights at the time of enforcement to be contrary to the key principle of the EU Internal Market that the same market conditions should exist throughout all of the EU’s Member States.

A Community Patent?

The aim of providing a single “Community” patent right that is enforceable throughout the EU, has been the subject of discussion many times over the years. Initial proposals were raised in the mid-1970s.  However, the member states have never been able to agree on the language of proceedings, translations at grant and the court(s) responsible for dealing with enforcement proceedings. 

In 2009, the European Commission made a refreshed attempt to get member states to agree to an EU wide unitary patent along with the creation of an EU Patent court.  The EU Patent court was proposed to have exclusive competence for proceedings relating to European patents granted by the EPO and for the unitary patent protection.

Progress has recently faltered. Spain and Italy rejected the language proposals and are taking legal action (that only English, French or German were to be used).  At around the same time, the Court of Justice of the EU announced that the proposed EU Patent court would be incompatible with EU treaties.

Discussions are now progressing to the detail needed to implement the Community Patent.  It is proposed that the European Patent Office will act as the granting authority for both the current European Patent and the Community Patent.  

A "Unified Patent Court" has been negotiated.  Major disagreement has arisen over the location of the court and also whether the Court of Justice of the EU would have jurisdiction on points of interpretation of EU patent law.  On 29 June 2012 an agreement was announced that would mean the Unified Patent Court would be split between Paris, London and Munich and that the CJEU would not have jurisdiction.

The proposals need to be approved by the European Parliament before they can start to be implemented.  However, approval is not necessarily a foregone conclusion - the vote has already been postponed once over a question over whether removing jurisdiction from the CJEU is constitutional.  In a surprise decision, the European Parliament on 3 July 2012 postponed a vote on the proposals to enable further scrutiny and consideration.