Colombia Update: Unitary European patent, an example to follow?

To date, everything indicates that by the end of 2022, i) the European patent system with unitary effect and, ii) the Unified Patent Court will enter into force, something that, in theory, will allow access to the system in a simple, economic and legally secure way, in the member countries of the agreement.

The issue is of marked relevance because, remember, there are no patents of global scope, being instead limited territorially to those countries where they are requested and granted.
Now, in response to the complexities that this territorial area implies, there are currently four organizations that grant regional patents, namely the Eurasian Patent Organization, the African Intellectual Property Organization, the African Regional Industrial Property Organization and the European Patent Office.

For the European case, however, the grant of a patent currently requires the validation and individual maintenance of the same in each country of interest, the latter being one of the main changes once the European unitary patent enters into force, since in accordance with the new agreements, the applicant for the patent may request the unitary effect once it has been granted by the European Office of patents, becoming valid in all member countries of the agreement and requiring a single maintenance fee that could be up to about five times less than the individual sum of the country-to-country fees.

This regional unification will also imply strong changes in relation to the processes of infringement and validity of European patents, since the Unified Patent Court will enter into force, which will have mandatory jurisdiction over all unitary patents.

Now, on a purely theoretical analysis, there are several currents that anticipate advantages and disadvantages of different kinds for small, medium and large companies that need to protect their inventions in Europe. By way of example, it is presumed that the simplicity and low cost of the unitary patent may be overshadowed by the excessively high costs of accessing the Unified Patent Court, the quality of the Decisions of the Unified Patent Court, and the implications of receiving simultaneous revocations in all member countries of the agreement. In this regard, we can only wait for the definition of the last details for its entry into force and the results in the short and medium term.

At the moment, and as interesting references, it is worth noting that efforts to achieve a unitary patent in Europe began around 1970, and that to date, Spain is not part of the system because a unitary patent should not be processed in Spanish.

In our region, meanwhile, four countries share legislation on industrial property (Andean Decision 486), but its application to the study of patent applications is far from unified.

At the moment, the only certainty is that we have an obligation to follow in detail the effects of the unitary patent in Europe, and perhaps seek to replicate the best of it for the benefit of our interests.

By Nestor Bejarano, LLOREDA CAMACHO & CO, Colombia, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact colombia@transatlanticlaw.com 

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