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UE : [REPONSE] Question E-006324-16 de Maria Heubuch (Verts/ALE) - Brevet unitaire européen - conséquence du Brexit, enjeux d’inflation potentielle de brevets dans domaine sensible comme les semences

Niveau juridique : Union européenne

Texte de la question (uniquement disponible en anglais et allemenand)

« While the European unitary patent is intended to guarantee supranational protection for inventions, the agreement to establish the Unified Patent Court (UPC) still has to be ratified by several Member States.

The unitary patent will bring some significant changes. Patents granted by the European Patent Office (EPO) will be directly valid in all participating countries. Until now, there have been different rules and procedures for national validation of patents granted by the EPO. As a result, only a very low number of patents on seeds, for instance, have been validated in several countries. In the future, a strong increase in the number of patents valid in participating countries (in this and other sectors) can be expected. This may lead to over-patenting in sensitive areas such as agriculture, and to a bigger playing field for so-called patent trolls.

Does the Commission expect a delay in the ratification process for the UPC in light of Brexit?

Does it expect a strong, or possibly even an extreme, increase in the number of patents valid in several countries as a result of the unitary patent?

What measures is it taking to prevent over-patenting in sensitive areas such as agriculture and seed production?

Réponse de la Commission :

« Joint answer given by Ms Bieńkowska on behalf of the Commission

The Commission is committed to the unitary patent package project. The impact on the volume of patent applications filed at the European Patent Office is difficult to predict with certainty. It is likely that some of the classical European patents will opt for the unitary effect rather than being validated as a bundle of national patents. Moreover, more patents could become effective in Member States where currently the European patents are rarely validated(1). The Unified Patent Court Agreement contains limitations to the scope of the unitary and of the classical European patents particularly in the field of agriculture and seed where a limited breeder exemption has been inserted.

The Commission does not have concrete and tangible information to suggest that the phenomenon of patent trolls is widespread in Europe. The introduction of the new system should not lead to an inflation of injunctions granted by the future Court in favour of these entities since, according to Article 62 of the Unified Patent Court Agreement, judges will only grant injunctions on solid and robust grounds.

As regards Unified Patent Court fees, in case of patent revocation, companies have to pay a fixed fee as well as other fees depending on the value of the actions. The costs charged by patent professionals for bringing cases before the future Court will be decided by patent attorneys. The ceilings for recoverable costs due to patent infringements depend on the value of the proceeding. Small enterprises and micro-enterprises are entitled to pay only 60% of certain fees. Small entities can request a reduction if the amount threatens their economic existence. Alternative dispute resolution mechanisms such as mediation and arbitration remain available.

(1)Thus, some companies from third countries could be indeed inclined to privilege in certain circumstances the unitary patent instead of classical European patents. »

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