The entry into force of the unitary patent protection system in Europe is fast approaching - what does it mean for Poland?

After many years of heated discussions and preparations regarding the creation of a unitary patent protection system in Europe, enabling a patent to be obtained in a single, centralised procedure that will be valid in numerous EU countries, the watershed moment has finally arrived where it can realistically be expected that the system will come into force at the end of this year.

With Austria filing the relevant ratification documents in January this year, the phase of provisional application of the Agreement on the Unified Patent Court came into force, which, according to a statement by EU Commissioner for Internal Market, Thierry Breton, will lead to the full launch of the system within the next twelve months. Currently, work will be carried out in order to, among other things, select the judges and implement the court’s IT system.

The assumption is that the creation of a European patent with unitary effect (the so-called unitary patent) will make it possible to grant an exclusive right to a given applicant, which will automatically apply in all EU countries participating in that system, and issues related to infringement or invalidation of such a patent will be examined by a single court. This system is intended to simplify the current procedures for obtaining a European patent that does not have automatic validity in many countries and requires the holder to take specific actions, often involving the filing of additional translations and related costs.

Despite the fact that initially, during its EU presidency, Poland supported the creation of a unitary patent protection system in Europe by joining the so-called enhanced cooperation in this respect, to date it has not signed the Agreement on the Unified Patent Court. This does not mean, however, that the entry into force of this system in Europe will have no effect on the situation of companies operating in Poland, including Polish businesses – quite the contrary.

Since the system will soon be in force in many European countries, there are a number of actions that especially companies creating or exclusively using innovative technologies, but also other Polish businesses, should take into account.

Above all, with the entry into force of the new system, holders of European patents (including companies based in Poland) should decide whether they want to submit their exclusive rights to the jurisdiction of the Unified Patent Court or whether, as before, disputes relating to those patents are to be settled by the authorities of the individual countries in which the patent remains in force. In the absence of a decision within the prescribed period, the Unified Patent Court will become exclusively competent to decide on both infringement and invalidation of such patents (with respect to the territories of the countries that eventually adopt the unitary patent system).

In addition, businesses that currently have licensing agreements for the use of technologies covered by European patents should review them, also with a view to applying the new system to them and submitting disputes to the jurisdiction of the Unified Patent Court.

When the new system comes into effect, it is also worthwhile for businesses that will be operating in the European countries covered by the system by offering their goods and services there, to verify whether the inventions covered by the unitary patent will be used in their solutions, and if so, to conclude appropriate licensing agreements. Otherwise, they will be exposed to litigation already conducted under the new rules, exclusively before the Unified Patent Court. It is now known that the court will have two central offices, in Paris and Munich, while due to Brexit, the originally planned third office in London will be moved to another location yet to be determined. The appeals court, on the other hand, will be based in Luxembourg.

One of the planned advantages of the new system is that through the introduction of the Unified Patent Court, it is intended to enable, over time, the creation of uniform and more predictable jurisprudence in patent matters, which will undoubtedly result in greater certainty of trade in the use and enforcement of patents. At present, there are often divergent decisions and rulings in different member states on infringement or invalidity of the same European patent, and disputes take place simultaneously in many countries. This phenomenon has recently been particularly evident in the telecommunications and automotive sectors, in the context of disputes over so-called standard essential patents, which are increasingly widely used in connection with, inter alia, the development of the Internet of Things and 5G networks.

Nevertheless, the planned new system also has disadvantages, which were very much talked about in the public space in Poland in 2013. Among other things, due to concerns that the new system would result in Poland having a very large number of patents filed by foreign companies that would not be published in Polish, it was finally decided at that time that Poland would not join the Agreement. Nevertheless, those decisions were made almost a decade ago, based on economic analyses presented at that time, and only now is the entry into force of the unitary patent feasible in a rather short time frame. Therefore, it is undoubtedly worth reopening discussions on this topic and conducting new analyses, since, as can be seen from the above, the system will not bypass Polish businesses.