The Pan European Patent Dream

Shortly before Christmas, that’s Christmas this year, 2011, the dream of two if not more generations is due to be realised: the Unitary European Patent should be born, or at least regulations to create both the Unitary European Patent and the system of European Patent Courts to enforced this new form of IP should be approved.
The first thing that may be surprising is this event is happening at all, because we have had a European Patent System and European Patents (sic) for over 30 years.  The thing is that the current European Patent is only one unified thing while it is being processed as a patent application by the European Patent Office, but as soon as the European Patent is approved and granted it becomes a cluster of national patents, one in each of those European countries that the applicant has designated.  So, no single unified patent covering all European Countries, but a single European Patent auto-transforming into a bunch of national patents .
The idea of a Unitary European Patent has been around, but not implemented, for over 30 years too, but issues with languages, costs, and jurisdiction of the courts to oversee use of such patents have bogged the concept down in endless debate and pretty much sidelined the idea to historic and academic interest.  Not anymore though. Now a new spurt of political will has emerged which is driving forward the majority, but not quite all European countries, to achieve the impossible dream and to do so in the manner of a Christmas fairy tale: in the blink of an eye.
The result is that the detail, in which as we know the devil lives, is seemingly being spurned at the expense of political success.  A result, whatever the compromise, appears to be the overriding political goal.  Voices from professional groups across Europe are pleading for a slower pace to allow reflection and consideration of the consequences of the practical implementation of the draft regulation being discussed, but as yet there is no sign of slackening in the pace or the political will for change.   Now the over-arching goal of promoting economic development is paramount, and that is what the Unitary European Patent is touted to achieve.
As yet it is unclear whether the bold claims of politicians that the new system will open up European-wide access to patent protection to small companies will actually be realised.  It is difficult to see how small companies who cannot afford to litigate a national patent in their home country will be able to enforce a Unitary European Patent through a centrally based European Patents court.  In the end it may end up being only to advantage of large companies with the money and resources to successful exploit the inevitable quirks of the new system.  Small companies may be disadvantaged by simply being unable to take the advantages that the new system offers.
At a time with little economic cheer, the chance of a success filled sound bite will always lure politicians.  We will watch with close attention what they serve up this Christmas, but as this gift will take some digesting, we may not know for several years, whether we have a turkey or not.
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