April 11, 2022

Patents in Europe, Patents in Eastern Mediterranean

In the following paragraphs we first present the complex landscape of the European Patent System and the improvements which will be brought by the Unitary Patent. We then present the situation in South Eastern Mediterranean, an area which lags behind all others in terms of patent activity. 

The European patent

European patents are titles of Intellectual Property (IP) granted in accordance with the provisions of the European Patent Convention, via a unified procedure before the European Patent Office. A single patent application, in one language (English, French or German), is filed either at the European Patent Office or at a national patent office. Following this filing, the patent application is searched and examined in a centralised procedure by the EPO and ends up with a grant or a refusal (or, quite often with the abandonment). 

In contrast to the unified character of a European patent application, a granted European patent has, in effect, no unitary character. Once granted, the patent becomes a “bundle” of national patents which have to be filed, often with a translation, at all national patent offices in which the patent proprietor wishes to get protection. In other words, a European patent in one Contracting State, i.e. a “national” European patent, is effectively independent of the same European patent in each other Contracting State, except for the opposition, limitation and revocation procedures. 

In addition, the enforcement of a European patent (infringement and revocation) is dealt with by national law. One granted patent which has been validated in several countries, can be challenged by a competitor independently in some of these countries or in all. As all national jurisdictions are independent, the outcome can vary from country to country, leading to legal uncertainty. 

The Unitary Patent package

Back to the 1970s started the first efforts to provide one single title of IP which would have legal effect in all EU member states. Throughout these years it took the name “Community patent”, “European Community Patent”, “EC patent”, “COMPAT” and lately “Unitary Patent”. 

The Unitary Patent and the Unified Patent Court (UPC) are the building blocks of the Unitary Patent package which will supplement and strengthen the existing centralised European patent-granting system. They will offer users a cost-effective option for patent protection and dispute settlement across the 25 participating EU Member States (Spain and Croatia do not participate in the unitary patent regulation and the UPC Agreement).

Unitary Patents will make it possible to obtain uniform patent protection in up to 25 EU Member States by submitting a single request to the EPO, making the protection of inventions for patent holders simpler and more cost effective.

The UPC will be an international court with jurisdiction for infringement and revocation actions concerning patents granted by the EPO. This specialised court will make the Europe-wide enforcement of patents easier, offer greater legal certainty and reduce litigation costs. The Court is based on an international treaty, the UPCA. The UPC will have three Courts of first instance based in Paris, Munich and a third city (a still to be decided city, which will replace the initially planned Court of London) and a Court of Appeals, based in Luxemburg.

On the 19th of January 2022, after many decades of disagreements, postponements and delays the Unitary Patent and the Unified Patent Court became a reality. The EU finally gets the Patent System which will assure the uniform application of a single title (the European Patent) and a single jurisdiction in 25 member states. The Unitary Patent will be filed as a European Patent at the EPO, or at a national Office, will be examined by the EPO and only after grant the patent proprietor will have the option of either getting a Unitary Patent or a national patent in all states in which (s)he wishes to get protection. 

The patent landscape in Eastern Mediterranean

The European Patent Office has a very active diplomacy consisting in enlarging its territory through inviting new countries to join, well before the European Union does so. As a result, all countries of the Balkan peninsula as well as Turkey are members of the European Patent Convention (EPC). Although Greece acceded in 1986 and all the other countries acceded the EPC at least 13 years ago, the whole region is lagging seriously behind in terms of number of patent applications, grants, European Patent Attorneys, and all other measurable parameters related to patents. Certainly, there is a substantial technological delay between this part of Europe and e.g. the Scandinavian peninsula, but technological development and patent activity are closely related one to the other.

In order to find the reasons for these delays, one must look deeper in the legislative framework of the Balkan countries. Although the basic pieces of law have been implemented through the signing of international agreements, we have to examine the way the countries implement additional legislation, such as the London Agreement on patent translations, the opening of the job of Patent Attorneys and, last but not least, the accession to the Unitary Patent and the UPC.  

Let us start with the London Agreement, an optional agreement aiming at reducing the costs relating to the translation of European patents. The contracting states which have ratified or acceded to the Agreement undertake to waive, entirely or largely, the requirement for translations of European patents. Amongst all Mediterranean countries, none has ratified the Agreement and only Albania, Croatia, North Macedonia and Slovenia apply it partially. The reason for this is that some long-standing law firms profit from the translations and refuse the legislative change. 

The three last countries in terms of number of European Patent Attorneys per million inhabitants are Turkey, Greece and Romania, whilst Croatia, Serbia, Albania and Bulgaria are very close to the bottom. Without qualified patent attorneys the patent system cannot work, as only these professionals are able to draft patent claims, defend a patent application before the highly skilled examiners of a Patent Office, such as the EPO, negotiate licensing agreements, defend a patent in case of infringement and more.

Finally, only Bulgaria amongst the 14 states of South-eastern Mediterranean has ratified the Unitary Patent and will participate in the new procedure when in starts (expected at the 2nd half of 2022). As the countries which have not ratified the Unitary Patent cannot be selected for validation, very few European patents will finally be validated in these countries and income from validations will be lower.

The above examples are three amongst many, where secondary legislature is neglected, and the countries of the region increase their gap with the most developed ones. This will bring further delays in the technological development and prosperity of this part of Europe. It is necessary many governments in the region to review their policies.