Editing Unitary patent (section)

==Background==
===Legislative history===
[[Image:Mikolaj Dowgielewicz eu minister 0c169 7655.jpg|thumb|right|In 2011, [[Mikołaj Dowgielewicz]], Polish Minister for European and Economic Affairs, said: "We have our [[wikt:back to the wall|backs to the wall]]: one or two member states are not willing to compromise and there will not be a breakthrough before the end of our [[Presidency of the Council of the European Union|Presidency]]."<ref name="Mosca-2011">{{cite web |url=http://www.europolitics.info/presidency-throws-in-towel-on-litigation-court-art321522.html |title=Presidency throws in towel on litigation court |author=Sophie Mosca |date=16 December 2011 |publisher=Europolitics |access-date=16 December 2011 |url-status=dead |archive-url=https://web.archive.org/web/20120407043055/http://www.europolitics.info/presidency-throws-in-towel-on-litigation-court-art321522.html |archive-date=7 April 2012}}</ref>]]

In 2009, three draft documents were published regarding a community patent: a European patent in which the European Community was designated:

# Council regulation on the community patent,<ref>{{cite web|url=http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST%208588%202009%20INIT|title=Revised proposal for a council decision on the Community patent|access-date=26 March 2014|date=7 April 2009|work=Council of European Union}}</ref> 
# Agreement on the European and Community Patents Court (open to the European Community and all states of the European Patent Convention)<ref>{{cite web|url=http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST%207928%202009%20INIT|title=Draft Agreement on the European Community and patents court|access-date=26 March 2014|date=7 April 2009|work=Council of European Union}}</ref> 
# Decision to open negotiations regarding this Agreement

Based on those documents, the European Council requested on 6 July 2009 an opinion from the Court of Justice of the European Union, regarding the compatibility of the envisioned Agreement with EU law: "'Is the envisaged agreement creating a Unified Patent Litigation System (currently named European and Community Patents Court) compatible with the provisions of the Treaty establishing the European Community?’"<ref>{{CELEX|62009CV0001}}</ref>

In December 2010, the use of the [[enhanced co-operation]] procedure, under which [[s:Consolidated version of the Treaty on the Functioning of the European Union/Title III: Enhanced Cooperation|Articles 326–334]] of the [[Treaty on the Functioning of the European Union]] provides that a group of member states of the European Union can choose to co-operate on a specific topic, was proposed by twelve Member States to set up a unitary patent applicable in all participating European Union Member States.<ref name="Tait">Nikki Tait, [http://www.ft.com/cms/s/0/fa9b799a-0799-11e0-8d80-00144feabdc0.html#axzz18DVrohfy "Brussels backs ‘single European patent’ plan"], FT.com, 14 December 2010. Consulted on 15 December 2010.</ref> The use of this procedure had only been used once in the past, for harmonising rules regarding the [[applicable law]] in divorce across several EU Member States.<ref name="Tait"/>

In early 2011, the procedure leading to the enhanced co-operation was reported to be progressing. Twenty-five Member States had written to the European Commission requesting to participate, with Spain and Italy remaining outside, primarily on the basis of ongoing concerns over translation issues. On 15 February, the European Parliament approved the use of the enhanced co-operation procedure for unitary patent protection by a vote of 471 to 160,<ref>[http://www.europarl.europa.eu/en/pressroom/content/20110215IPR13680/html/EU-patent-Parliament-gives-go-ahead-for-enhanced-cooperation European patent: Parliament gives go ahead for enhanced cooperation] {{Webarchive|url=https://web.archive.org/web/20110218195221/http://www.europarl.europa.eu/en/pressroom/content/20110215IPR13680/html/EU-patent-Parliament-gives-go-ahead-for-enhanced-cooperation |date=18 February 2011 }}, European Parliament, published: 15 February 2011. Consulted on 15 February 2011.</ref> and on 10 March 2011 the Council gave their authorisation.<ref>{{cite web| url = http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/119732.pdf| title = Council authorises enhanced cooperation for EU Patent}}</ref><ref>{{CELEX|32011D0167|text=2011/167/EU: Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection}}</ref> Two days earlier, on 8 March 2011, the [[Court of Justice of the European Union]] had issued its opinion, stating that the draft Agreement creating the European and Community Patent Court would be incompatible with EU law.<ref>{{cite web |title=PRESS RELEASE No 17/11, Opinion 1/09, The draft agreement on the creation of a European and Community Patent Court is not compatible with European Union law |url=https://curia.europa.eu/jcms/upload/docs/application/pdf/2011-03/cp110017en.pdf |archive-url=https://web.archive.org/web/20110313175336/http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-03/cp110017en.pdf |archive-date=2011-03-13 |url-status=live |website=europa.eu |publisher=Court of Justice of the European Union |access-date=17 July 2022 |location=Luxembourg |date=8 March 2011}}</ref> The same day, the Hungarian Presidency of the Council insisted that this opinion would not affect the enhanced co-operation procedure.<ref>{{cite web |url = http://www.eu2011.hu/files/bveu/documents/PatentPressRelease_08032011.pdf |title = Press release of 8 March |archive-url=https://web.archive.org/web/20110725193352/http://www.eu2011.hu/files/bveu/documents/PatentPressRelease_08032011.pdf |archive-date=25 July 2011 |url-status=dead}}</ref>

In November 2011, negotiations on the enhanced co-operation system were reportedly advancing rapidly—too fast, in some views.<ref>{{cite web |url=http://www.europolitics.info/business-competitiveness/european-patent-moves-forward-art318386-7.html |title=European patent moves forward |date=16 November 2011 |publisher=Europolitics |access-date=7 December 2011 |archive-url=https://archive.today/20120913120326/http://www.europolitics.info/business-competitiveness/european-patent-moves-forward-art318386-7.html |archive-date=13 September 2012}}</ref> It was announced that implementation required an enabling European Regulation, and a Court agreement between the states that elect to take part. The European Parliament approved the continuation of negotiations in September.<ref>[http://www.europarl.europa.eu/en/pressroom/content/20111121IPR31956/html/A-step-closer-to-an-EU-patent A step closer to an EU patent] {{Webarchive|url=https://web.archive.org/web/20111126050253/http://www.europarl.europa.eu/en/pressroom/content/20111121IPR31956/html/A-step-closer-to-an-EU-patent |date=26 November 2011 }}, European Parliament press release, JURI Justice and home affairs, 22 November 2011.</ref> A draft of the agreement was issued on 11 November 2011 and was open to all member states of the European Union, but not to other European Patent Convention states.<ref>[http://register.consilium.europa.eu/pdf/en/11/st16/st16741.en11.pdf Draft agreement on a Unified Patent Court and draft Statute – Revised Presidency text], Document no 16741/11, Council of the European Union, Brussels, 11 November 2011.</ref> However, serious criticisms of the proposal remained mostly unresolved.<ref>[http://www.les-bi.org/documents/UnifiedPatentCourt-ConcernsofPrinciple_10926472_1__8_.doc2.9-3.pdf "Concerns of Principle"] {{Webarchive|url=https://web.archive.org/web/20131013053309/http://www.les-bi.org/documents/UnifiedPatentCourt-ConcernsofPrinciple_10926472_1__8_.doc2.9-3.pdf |date=13 October 2013 }}, [[Licensing Executives Society International|LES]] Britain and Ireland (Sub-group), 14 June 2011</ref> A meeting of the Competitiveness Council on 5 December failed to agree on the final text.<ref>[http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/126579.pdf "EU press release 18115/11, at p. 19"], 24 November 2011</ref> In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located,<ref>{{cite news |url=https://www.theguardian.com/law/2011/nov/28/london-lawyers-want-patents-court |title=London backed by UK lawyers as home of new European patents court |author=Owen Bowcott |date=28 November 2011 |newspaper=The Guardian |access-date=7 December 2011}}</ref> "with London, Munich and Paris the candidate cities."<ref name=Fleming2011>{{cite web |url=http://www.euractiv.com/innovation-enterprise/italy-spain-drop-opposition-eu-patent-news-509433 |title=Italy, Spain could drop opposition to EU patent |author=Jeremy Fleming |date=5 December 2011 |publisher=EurActiv.com |access-date=7 December 2011 |archive-date=7 January 2012 |archive-url=https://web.archive.org/web/20120107200418/http://www.euractiv.com/innovation-enterprise/italy-spain-drop-opposition-eu-patent-news-509433 |url-status=dead }}</ref>

The Polish [[Presidency of the Council of the European Union|Presidency]] acknowledged on 16 December 2011 the failure to reach an agreement "on the question of the location of the seat of the central division."<ref name="Mosca-2011"/> The Danish Presidency therefore inherited the issue.<ref name="Mosca-2011"/><ref>{{cite web |url=http://www.euractiv.com/future-eu/eu-presidency-nears-poland-vents-frustrations-news-509788 |title=As EU presidency nears end, Poland vents frustrations |date=16 December 2011 |publisher=EurActiv.com |access-date=16 December 2011 |archive-date=8 January 2012 |archive-url=https://web.archive.org/web/20120108022807/http://www.euractiv.com/future-eu/eu-presidency-nears-poland-vents-frustrations-news-509788 |url-status=dead }}</ref><ref>{{cite magazine |url=http://www.businessweek.com/news/2011-12-16/agreement-on-eu-wide-patent-unlikely-this-year-poland-says.html |archive-url=https://archive.today/20120730141227/http://www.businessweek.com/news/2011-12-16/agreement-on-eu-wide-patent-unlikely-this-year-poland-says.html |url-status=dead |archive-date=30 July 2012 |title=Agreement on EU-Wide Patent Unlikely This Year, Poland Says |author=Jones Hayden |date=16 December 2011 |magazine=Bloomberg Businessweek |access-date=16 December 2011}}</ref> According to the President of the European Commission in January 2012, the only question remaining to be settled was the location of the Central Division of the Court.<ref>{{cite web |url=http://ec.europa.eu/commission_2010-2014/president/news/speeches-statements/2012/01/20120118_speeches_1_en.htm |title=EP Debate on the start of the Danish EU Presidency |date=January 2012 |publisher=European Commission (José Manuel Barroso) |access-date=4 March 2012 |quote=We must urgently reach agreement on the European patent. We have been discussing this for decades. I fully expect negotiations on this to be completed early in the Danish Presidency. I call on the three Member States, France, Germany and the United Kingdom, who are holding this up over a site issue of some offices, to swiftly find a compromise. Frankly, it is not acceptable! It is not acceptable that such a crucial initiative is blocked over such a trivial disagreement.}}</ref> However, evidence presented to the UK House of Commons [[European Scrutiny Committee]] in February suggested that the position was more complicated.<ref>{{cite web |url=https://publications.parliament.uk/pa/cm201012/cmselect/cmeuleg/uc1799ii/uc1799ii.htm |title=Uncorrected Transcript of Oral Evidence (To be published as HC 1799-ii), Oral Evidence Taken Before the European Scrutiny Committee, Draft agreement on a unified patent court and draft statute, Baroness Wilcox, Neil Feinson, Liz Coleman and Nicholas Fernandes, Evidence heard in Public Questions 73 – 125 |date=1 February 2012 |publisher=House of Commons |quote=''Neil Feinson'': There is more than one issue outstanding. There is one very big issue, which is the location, and then there are a lot of technical issues that are outstanding. |access-date=4 March 2012}}</ref> At an EU summit at the end of January 2012, participants agreed to press on and finalise the system by June.<ref>{{cite web |url=http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/127599.pdf |archive-url=https://web.archive.org/web/20120131133519/http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/127599.pdf |archive-date=2012-01-31 |url-status=live |title=Statement of the Members of the European Council, Towards Growth-Friendly Consolidation and Job-Friendly Growth |date=30 January 2012 |publisher=European Council |location=Brussels |quote=The participating Member States commit to reaching at the latest in June 2012 a final agreement on the last outstanding issue in the patent package. |access-date=4 March 2012}}</ref> On 26 April, [[Herman Van Rompuy]], President of the European Council, wrote to members of the council, saying "This important file has been discussed for many years and we are now very close to a final deal,.... This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council."<ref>{{cite web |url=http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/129860.pdf |archive-url=https://web.archive.org/web/20120708184827/http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/129860.pdf |archive-date=2012-07-08 |url-status=live |title=Letter from President of the European Council Herman Van Rompuy to the members of the European Council |date=26 April 2012}}</ref> The Competitiveness Council met on 30 May and failed to reach agreement.<ref>{{cite web |url=http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/130562.pdf |archive-url=https://web.archive.org/web/20120601165248/http://www.consilium.europa.eu//uedocs/cms_data/docs/pressdata/en/intm/130562.pdf |archive-date=2012-06-01 |url-status=live |title=PRESS RELEASE, 3169th Council meeting, Competitiveness (Internal Market, Industry, Research and Space), Brussels, 30–31 May 2012}}</ref>

A compromise agreement on the seat(s) of the unified court was eventually reached at the June European Council (28–29 June 2012), splitting the central division according to technology between Paris (the main seat), London and Munich.<ref name="sciencebusiness27-06-12"/><ref name="EuObserver29-06-12">{{cite news |url=http://euobserver.com/19/116819 |title=EU breaks 30-year deadlock on EU patent |work=Euobserver.com |date=29 June 2012 |access-date=29 June 2012 |author=Nikolaj Nielsen}}</ref> However, on 2 July 2012, the European Parliament decided to postpone the vote following a move by the European Council to modify the arrangements previously approved by MEPs in negotiations with the European Council. The modification was considered controversial and included the deletion of three key articles (6–8) of the legislation, seeking to reduce the competence of the European Union Court of Justice in unitary patent litigation.<ref>{{cite web|title=EU patent: Parliament postpones vote due to Council's last-minute change|url=http://www.europarl.europa.eu/news/de/pressroom/content/20120703IPR48182/html/EU-patent-Parliament-postpones-vote-due-to-Council's-last-minute-change.|publisher=europarl.europa.eu|access-date=1 August 2012|archive-date=24 May 2013|archive-url=https://web.archive.org/web/20130524064853/http://www.europarl.europa.eu/news/de/pressroom/content/20120703IPR48182/html/EU-patent-Parliament-postpones-vote-due-to-Council%27s-last-minute-change.|url-status=dead}}</ref> On 9 July 2012, the Committee on Legal Affairs of the European Parliament debated the patent package following the decisions adopted by the General Council on 28–29 June 2012 in camera in the presence of MEP [[Bernhard Rapkay]].<ref>{{cite web|title=JURI debate on the patent package following the decisions adopted by the General Council|url=http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-492.927%2b01%2bDOC%2bPDF%2bV0%2f%2fEN|publisher=europarl.europa.eu|access-date=13 November 2012}}</ref> A later press release by Rapkay quoted from a legal opinion submitted by the Legal Service of the European Parliament, which affirmed the concerns of MEPs to approve the decision of a recent EU summit to delete said articles as it "nullifies central aspects of a substantive patent protection". A Europe-wide uniform protection of intellectual property would thus not exist with the consequence that the requirements of the corresponding EU treaty would not be met and that the European Court of Justice could therefore invalidate the legislation.<ref>{{cite web|title=Press Release MEP Rapkay|url=http://spdnet.sozi.info/nrw/dortmund/brapkay/dl/EU_Patent_PM_Juli_2012.pdf|publisher=rapkay.sozi.info|access-date=13 November 2012|url-status=dead|archive-url=https://web.archive.org/web/20150903215100/http://spdnet.sozi.info/nrw/dortmund/brapkay/dl/EU_Patent_PM_Juli_2012.pdf|archive-date=3 September 2015}}</ref> By the end of 2012 a new compromise was reached between the European Parliament and the European Council, including a limited role for the European Court of Justice. The Unified Court will apply the Unified Patent Court Agreement, which is considered national patent law from an EU law point of view, but still is equal for each participant.<ref>{{cite news|url=http://news.sciencemag.org/scienceinsider/2012/12/after-decades-of-debate-eu-leade.html|work=Science Magazine|title=UPDATE: After Decades of Debate, E.U. Leaders Sign Off on Single Patent|author=Tania Rabesandratana|access-date=18 February 2013|date=10 December 2013|url-status=dead|archive-url=https://web.archive.org/web/20130128025943/http://news.sciencemag.org/scienceinsider/2012/12/after-decades-of-debate-eu-leade.html|archive-date=28 January 2013}}</ref> [However the [http://www.legislation.gov.uk/ukdsi/2016/9780111142899 draft statutory instrument] aimed at implementation of the Unified Court and UPC in the UK provides for different infringement laws for: European patents (unitary or not) litigated through the Unified Court; European patents (UK) litigated before UK courts; and national patents]. The legislation for the enhanced co-operation mechanism was approved by the [[European Parliament]] on 11 December 2012<ref name=EUPARL>{{cite web |url=http://www.europarl.europa.eu/news/en/headlines/content/20121203FCS04313/3/html/Parliament-approves-EU-unitary-patent-rules |title=Parliament approves EU unitary patent rules |access-date=11 December 2012 |date=11 December 2012 |work=European Parliament |archive-date=16 December 2012 |archive-url=https://web.archive.org/web/20121216060429/http://www.europarl.europa.eu/news/en/headlines/content/20121203FCS04313/3/html/Parliament-approves-EU-unitary-patent-rules |url-status=dead }}</ref> and the regulations were signed by the European Council and European Parliament officials on 17 December 2012.

On 30 May 2011, Italy and Spain challenged the council's authorisation of the use of enhanced co-operation to introduce the trilingual (English, French, German) system for the unitary patent, which they viewed as discriminatory to their languages, with the CJEU on the grounds that it did not comply with the EU treaties.<ref name=case1>{{cite web|url=http://curia.europa.eu/juris/liste.jsf?num=C-274/11&language=en|title=Spain v Council|id=Case C-274/11 (Joined Cases C-274/11, C-295/11)|publisher=[[Court of Justice of the European Union]]}}</ref><ref>[http://www.euractiv.com/en/innovation-enterprise/italy-spain-take-patent-fight-court-news-505264 "Italy, Spain take patent fight to court"] {{webarchive |url=https://web.archive.org/web/20110902150034/http://www.euractiv.com/en/innovation-enterprise/italy-spain-take-patent-fight-court-news-505264 |date=2 September 2011 }}, EurActiv.com, Published 31 May 2011 – Updated 7 June 2011.</ref> In January 2013, [[Advocate General]] [[Yves Bot]] delivered his recommendation that the court reject the complaint. Suggestions by the Advocate General are advisory only, but are generally followed by the court.<ref name=UPDATE>{{cite web|url=https://www.reuters.com/article/eu-patent-idUSL5E8NBBHB20121211|title=UPDATE 1-Pan-European patent in prospect after years of dispute|work=Reuters|date=11 December 2012|access-date=18 February 2013|archive-date=3 July 2013|archive-url=https://web.archive.org/web/20130703193042/http://www.reuters.com/article/2012/12/11/eu-patent-idUSL5E8NBBHB20121211|url-status=live}}</ref> The case was dismissed by the court in April 2013,<ref name=case1/><ref>{{cite web|url=http://www.computing.co.uk/ctg/news/2261808/unified-eu-patent-scheme-moves-a-step-closer|title=Unified EU patent scheme moves a step closer|date=16 April 2013|access-date=21 April 2013|last=Palmer|first=Danny}}</ref> however Spain launched two new challenges with the EUCJ in March 2013 against the regulations implementing the unitary patent package. The court hearing for both cases was scheduled for 1 July 2014.<ref name=case2a>{{cite web|url=http://curia.europa.eu/juris/liste.jsf?num=C-146/13&language=en|title=Spain v Parliament and Council|id=Case C-146/13|publisher=[[Court of Justice of the European Union]]}}</ref><ref name=case2b>{{cite web|url=http://curia.europa.eu/juris/liste.jsf?num=C-147/13&language=en|title=Spain v Council|id=Case C-147/13|publisher=[[Court of Justice of the European Union]]}}</ref> Advocate-General [[Yves Bot]] published his opinion on 18 November 2014, suggesting that both actions be dismissed ({{ECLI|ECLI:EU:C:2014:2380}} and {{ECLI|ECLI:EU:C:2014:2381}}). The court handed down [[C-146/13 and C-147/13|its decisions]] on 5 May 2015 as {{ECLI|ECLI:EU:C:2015:298}} and {{ECLI|ECLI:EU:C:2015:299}} fully dismissing the Spanish claims.  Following a request by its government,<ref name=italyrequest/> Italy became a participant of the unitary patent regulations in September 2015.<ref name="italy">{{CELEX|32015D1753|text=Commission Decision (EU) 2015/1753 of 30 September 2015 on confirming the participation of Italy in enhanced cooperation in the area of the creation of unitary patent protection}}</ref>

===European patents===
{{Main|European Patent Convention}}

European patents are granted in accordance with the provisions of the European Patent Convention (EPC),<ref>{{EPC Article|2|1}}</ref> via a [[Grant procedure before the European Patent Office|unified procedure]] before the [[European Patent Office]] (EPO). While upon filing of a European patent application, all 39 Contracting States are automatically designated, a European patent becomes a bundle of "national" European patents upon grant. In contrast to the unified character of a European patent application, a granted European patent has, in effect, no unitary character, except for the centralized [[Opposition procedure before the European Patent Office|opposition procedure]] (which can be initiated within 9 months from grant, by somebody else than the patent proprietor), and the centralized [[Limitation and revocation procedures before the European Patent Office|limitation and revocation]] procedures (which can only be instituted by the patent proprietor).<ref>In addition to the opposition, limitation and revocation procedures, particular acts can still be performed before the EPO after grant, such as requesting a rectification of an incorrect designation of inventor under {{EPC Rule|21|1}}. "Rectification may [indeed] also be requested after the proceedings before the EPO are terminated." ({{EPO Guidelines|a|iii|5|6}}).</ref> In other words, a European patent in one Contracting State, i.e. a "national" European patent,{{refn|There is no consistent usage of a particular expression to refer to "the European patent in a particular designated Contracting State for which it is granted". The article uses the expression "a "national" European patent"|group=notes}} is effectively independent of the same European patent in each other Contracting State, except for the opposition, limitation and revocation procedures. The [[Enforcement of European patents|enforcement of a European patent]] is dealt with by national law.<ref>{{EPC Article|64|3}}</ref> The abandonment, revocation or limitation of the European patent in one state does not affect the European patent in other states.

While the EPC already provided the possibility for a group of member states to allow European patents to have a unitary character also after grant, until now, only Liechtenstein and Switzerland have opted to create a unified protection area (see [[Unitary patent (Switzerland and Liechtenstein)]]).<ref name="Swisstreaty">[http://archive.epo.org/epo/pubs/oj1980/p393_440.pdf Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection (Patent Treaty) of 22 December 1978] {{Webarchive|url=https://web.archive.org/web/20140328011211/http://archive.epo.org/epo/pubs/oj1980/p393_440.pdf |date=28 March 2014 }}, [[OJ EPO]] 1980, 407, or {{in lang|de}} [http://www.admin.ch/opc/de/classified-compilation/19780344/index.html Vertrag zwischen der Schweizerischen Eidgenossenschaft und dem Fürstentum Liechtenstein über den Schutz der Erfindungspatente] Die Bundesbehörden der Schweizerischen Eidgenossenschaft.</ref>

By requesting unitary effect within one month of grant, the patent proprietor is now able to obtain uniform protection in the participating members states of the European Union in a single step, considerably simplifying obtaining patent protection in a large part of the EU. The unitary patent system co-exists with national patent systems and European patent without unitary effects. The unitary patent does not cover EPC countries that are not member of the European Union, such as UK or Turkey.