After about 40 years of negotiations, on June 29, 2012 the European Union leaders meeting in Brussels reached a historical agreement regarding the unified patent system entailing both a unified patent Court and a single, unified patent for 25 EU states.

In fact, according to an official note issued by the European Council at the end of the meeting, the representatives of the EU member states participating in the project (with the exception of two EU member states) found an agreement also regarding what is said to be the last outstanding issue of the unified patent package, i.e. the location of the 1st instance Central Division of the unified patent Court (UPC).

It was decided that the Central Division, together the office of the President, shall be located in Paris. It was also decided that the first President of the court will come from France as well. Adducing the “highly specialized nature of patent litigation and the need to maintain high quality standards” as the reason for this, it was also decided that there will be two further sections of the Central Division with specialized thematic clusters. The first further section will be located in London and will deal with chemistry, including pharmaceuticals, and human necessities, while the other will be located in Munich and will deal with mechanical engineering.

As regards actions to be brought to the Central Division, according to the June 29, 2012 note it was agreed that parties will be able to start an infringement action before the Central Division if the alleged infringer is domiciled outside the EU, e.g. in the US, Japan, Canada, Israel, etc. It was also decided that, if a revocation action is already pending before the Central Division, the patentee will have the possibility to start the infringement action before the Central Division, too. Instead, the possibility for the alleged infringer to request the transfer of an infringement action from a local division to the Central Division will be excluded where the alleged infringer is based within the EU.

Finally, the European Council note suggests that certain articles the Regulation relating to the unitary patent be deleted. With this deletion, referrals on the merits to the European Court of Justice should not be possible. This might avoid what some consider to be a lengthy quasi-3rd instance stage of the proceedings before a Court which is not specialized in patent matters.

This week, the European Parliament should adopt a common opinion on the unitary patent proposal. Thereafter, it will be necessary for the relevant Regulations to be formally adopted for the proposal to go forward.

As regards the UPC, since this is based on an international agreement, the heads of state and government of the relevant EU member states will need to sign the agreement separately. Thereafter, the parliaments of the various EU member states will need to ratify the agreement for it to enter into force. In particular, at least 13 EU member states will have to ratify the agreement before it can actually enter into force.

Official statements of the European Council indicate that it is hoped that the first unitary patents will be granted in 2014, but this of course remains to be seen. In any case, if the unitary patent system is finally approved, it will surely provide many changes in the way patents are addressed in Europe.

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