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Slowly but surely, a single European patent system — first discussed more than 40 years ago as a way to smooth out the continent’s fragmented intellectual property (IP) protection — is moving towards fruition.
Last month, the EU Court of Justice removed the last big legal obstacle, when it dismissed challenges from Spain against the new “unitary patent” and the accompanying “unified European patent court”.
For those unversed in the IP world, the complex European patent scene takes some getting to know. The European Patent Office was set up in Munich in 1977 as an international treaty organisation outside the EU; there are currently 38 member states. The EPO examines and grants patents, but holders then have to register and enforce these at the national level.
The new system, set in place at the end of 2012 under the EU’s “enhanced co-operation” rules, will be grafted on to existing EPO procedures.
The EPO will continue its search, examination and granting activities, both for the present system and for the new unitary parent, which will apply only to EU member states that sign up for it. Applicants will have the option of seeking patents under either the old or the new system.
The timetable for introducing unitary patents is slipping — an inevitable consequence, perhaps, of all the work needed to set up an entirely new legal system to administer it. A couple of years ago, optimists were talking about starting early in 2015.
Now, says Alan Johnson, IP partner with London lawyers Bristows, “even the most optimistic estimates are not talking about a start-up before October 2016 and some time in 2017 is more realistic. The Commission had an utterly unrealistic timetable originally.
“As the UK Intellectual Property Office has argued from the beginning, it is better to proceed slowly and get things right than to rush in.”
Benoît Battistelli, EPO president, still hopes the unitary patent package will come into operation in the course of 2016.
Minimum number of countries needed to ratify the new treaty
The unified patent court, which will provide legal enforcement for the new system, will have a decentralised structure designed to spread the work around the EU. Patent disputes will be heard initially in a Court of First Instance with a central division in Paris and sections in London (looking after chemicals, pharmaceuticals and life science) and Munich (engineering and physical sciences), as well as local and regional divisions.
There will be a Court of Appeal and a registry, both in Luxembourg.
The court will also have a patent mediation and arbitration centre with seats in Ljubljana and Lisbon and a training framework for judges with facilities in Budapest. English, French and German are the languages of the new patent system. This follows existing EPO practice, but offended Italy and particularly Spain. Italy has dropped its initial opposition and now plans to join.
Number of drafts to date of the proposed procedural rules
Meanwhile, a lot of work has taken place, recruiting and training judges and establishing procedures that represent a workable compromise between the very different legal traditions of different EU countries, particularly the UK and Germany.
“We are currently on draft 18 of the procedural rules,” says David Wilson, IP partner at Herbert Smith Freehills of London, “and we’re expecting a final draft this year.”
At least 13 countries, including France, Germany and the UK, have to ratify the treaty setting it up before it can take effect. So far seven have done so, including France, leaving six, including Germany and the UK.
Though the ratification process is taking longer than expected, observers expect it to proceed — and not become caught up in the new Conservative government’s planned renegotiation of the UK’s EU membership.
One of the biggest decisions yet to be made is how much applicants will have to pay to obtain a unitary patent and then if necessary defend it through the unified court. Fees must be high enough to finance the system, but low enough to tempt inventors to choose it instead of continuing to file under existing procedures.
Direct costs of filing, renewing and defending patents will be one issue for companies deciding whether to go for unitary patents. Another will be the risk of putting all their eggs in one basket, because if they lose a patent through court action under the new system their protection will disappear throughout Europe.
If they file country by country, they may still be able to maintain the patent in some jurisdictions.
Tobii: developing advanced speech generation devices for people with paralysis or mobility loss
John Elvesjö was the kind of child who terrifies parents, writes Naomi Mapstone.
The inventor of the eye-tracking technology that enables severely disabled people to communicate via retinol movement significantly damaged the family home “more than once” with his earliest experiments.
The son of an electrician, Elvesjö stockpiled transformers, soldering irons and computers in his room and churned out scores of inventions.
“When I was 12 I was building things,” the Swedish inventor recalls.
“Home alarms, anything that flew or could be remotely controlled. Anything that could go boom. Anything that was an alarm, or used high-voltage electricity. I was obsessed.
“I always had the support of my family. They didn’t know what I was doing but they didn’t stop me.”
When Elvesjö was 21, while doing mathematical modelling on optical sensors in his mother’s basement, he realised the sensors could lock on to objects and track them. If he could train the sensors, he surmised, it could open up a whole new field of communications technology.
Elvesjö then spent 18 months on basic research and product development to build the first model of a communications device similar to that used most famously by the astrophysicist Stephen Hawking.
Tobii, the company Elvesjö founded with his partners Marten Skogo and Henrik Eskilsson to sell the technology, has gone on to develop more advanced speech generation devices for people with paralysis or mobility loss brought on by severe spinal cord injury or conditions such as cerebral palsy, multiple sclerosis or amyotrophic lateral sclerosis (ALS).
It has also developed applications for gaming, personal computers and motoring, where tracking retina movement could enhance safety and radically improve the quality of voice controls.
“Voice control is common in cars but very few people use it. Imagine if the car knows what you are looking at — it might actually be able to reduce the number of possible voice commands and improve the system,” he says.
Tobii’s initial public offering on the Swedish Stock Exchange last April was more than 30 times oversubscribed, valuing the company at $244m.
Although Elvesjö no longer has the amount of personal contact with clients that he did in the early years, every now and then he gets a thank-you letter or an email.
“It doesn’t happen every week, but certainly every month. A kid, a mother, somebody’s child, or the user themselves, writing. They want to express their gratitude. That’s really when we realise what we’re actually doing,” Elvesjö says.
“Too many people do not know these things are available. Too many people with a disability are not getting the help they need to communicate.”
Elvesjö was a finalist in this year’s European Inventor Award, SME category.