Updates Pharma 1-2013

On December 31, 2012, Regulation (EU) 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection was published in the Official Journal of the European Union.

It must first be clarified that the current European Patent system, governed by the 1973 Munich Convention, does not actually confer a single patent right that is valid and enforceable across the entire European Union. Instead, what we have is a centralized procedure conducted by the European Patent Office for the application for and grant of patents. However, once a patent has been granted, it must be validated in the different Member States in which the patent proprietor wishes to obtain protection. The result is that what we refer to as the “European Patent” turns into a collection of national patents that must be maintained and enforced in each country.

In contrast to the above, a “European patent with unitary effect” seeks to provide uniform protection in the 25 Member States that have signed up to this system of enhanced cooperation.

The European Patent Office will be responsible for processing applications and granting this new unitary patent. To that end, it will first be necessary to apply for and obtain a European Patent to then, not later than one month after the mention of the grant is published in the European Patent Bulletin, apply for unitary protection. Nonetheless, unitary effect means that only European patents that have been granted for all the participating Member States with the same set of claims may benefit from this system.

The unitary character of this patent means, inter alia, that the patent will enjoy uniform protection and have equal effect in all the participating Member States.