For reasons that will be obvious, this is a continuously evolving entry in this Glossary. We revisit it from time to time.
As Otto Von Bismark observed: “if you like laws and sausages, you should never watch either being made” – The history of the Community Patent, now to be called the European Union Patent (or EU Patent) has been long, a bit bloody, and has left a lot of confusion; whether the eventual product will to be anyone’s taste remains to be seen. The underlying logic of a single patent regime for a single common market has been transparent since the original Treaty of Rome, and proposals for such a patent have circulating since at least the 1970s, driven by the political goals of a single European market; addressing a perception of an innovation deficit from European companies as compared with US and Asian competitors; and cost effective pan-European patent protection and litigation.
Whether the EU Patent will ultimately have the form currently legislated for is still to predict, but it has come further than three previous proposals in 1975, 1985, and 1989 that faded away. So protracted has been the development of the single patent that by 2005 Charlie McCreevy, European Commissioner for Internal Market and Services, warned that the debate was in danger of paralleling the absurdist Samuel Becket play “Waiting for Godot.”
During the European Council meeting in June 2012, agreement was reached on a patent package that would establish EU Patent, excluding Italy, Spain and Croatia and a Unified Patent Court. Regulation (EU) No 1257/2012 establishing the new unitary patent was enacted in December 2012. However, its provisions are contingent on the related agreement for a Unified Patent Court entering into force, which is currently proposed to happen in 2014. The EU Patent will be granted by the European Patent Office, and will be valid in all the Community Patent ‘Participating States.’ One potential source of delay is that in March 2013, Spain brought two challenges at the Court of Justice of the EU to the proposed single patent system, which if successful, could stop the system coming into effect.
National patents will continue to exist as alternatives to the Community Patent, creating in the EU an even more complex patchwork of patent protection. Since Germany currently hosts about 70% of patent litigation in the EU, it has been speculated that patent applicants may apply in particular for German patents as an insurance policy for use in case the Unified Patent Court does not function very well.