EU Patent Is Dead! Long Live "European Patent With Unitary Effect."

Recently, the European Commission has published Document COM(2011) 215/3 titled Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL implementing enhanced cooperation in the area of the creation of unitary patent protection. Council Decision 2011/167/EU (March 22, 2011 - Official Journal of the European Union L 76/53) authorised the Member States listed in its Article 1 to establish enhanced cooperation in the area of the creation of unitary patent protection. Article 118 (1) TFEU provides for the legal basis for creating European intellectual property rights providing uniform protection throughout the Union by means of a regulation adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure.

Article 3

European patent with unitary effect

1. European patents granted with an identical scope of protection in respect of all participating Member States shall benefit from unitary effect in the participating Member States provided that their unitary effect has been registered in the Register for unitary patent protection referred to in Article 12(1)(b). European patents that were granted with different sets of claims for different participating Member States shall not benefit from unitary effect.

2. A European patent with unitary effect shall have a unitary character. It shall provide uniform protection and shall have equal effect in all participatin…