Hungarian Intellectual Property Association mszte.com - Magyar Szellemi Tulajdonvédelmi Egyesület The influence of the European unitary patent on small and medium-sized enterprises of the small countries The situation During the Hungarian Presidency of the Council of the European Union, Competitiveness Council agreed on two draft regulations related to the enhanced cooperation in order to create unitary patent protection. One of the regulations relates to the uniform protection of the invention, the other one deals with translation arrangements. In 2013, the members (including Poland and Italy) also signed the convention on the Unified Patent Court. In the framework of the enhanced cooperation concerning the unitary patent 25 countries – i.e. the 28 EU countries without Italy, Spain and Croatia – created the unitary patent that can be validated, lapsed, assigned as ‘one country’. The enhanced cooperation is open, so further members or even new EU countries can join. Meanwhile, Italy has also joined, however, Poland practically withdrew. Given that the cooperation of the 25 countries affects the validation stage after the grant of the European patent (including 38 member states), it is appropriate to use the word ‘unitary patent’, even if not all of the EU countries are members of the cooperation yet. Therefore, we cannot speak of a new option for patent applications, as the granted patent is still the European patent we know, that can be validated in the EU’s 25 member states uniformly. Since currently the granted European patent has to be validated in each country sequentially. The one by one validation remains an alternative, and in the future as the single option for the countries that are members of the European Patent Convention. The validation is an action, similar to the equivalence of diplomas. The London Agreement regulates the countries’ different translation requirements. Several countries do not require translation, for some the rules are dependent upon the original procedural language. For example, in Hungary if the procedural language is English, the Hungarian translation of the patent claims is sufficient for Address: H-1539 Budapest, Pf. 590 [email protected] – Tel.:+36 84 345 798 www.hipa.org.hu VAT: 18505098-1-14 2 the validation. In case of a German or French patent the entire patent description has to be translated. Thus, currently an English speaking developer can understand the description in a way that he has the opportunity to study both the Hungarian and English patent claims that include the most important exclusive rights. Currently, 3000 out of the approximately 70 000 granted European patents are validated in Hungary, which means, we have to face 3000 exclusive rights every year. In Europe, a European patent is maintained for an average of 12 years. Two third of the European patents does not belong to European companies. The number European patents with Hungarian origin is minimal, about 50, which is a rate of 0,07%. Therefore, currently the exclusive rights of developments are manageable and to a not too dangerous amount they are accessible in Hungarian for the Hungarian R&D sector. There were 4 years since 2011 for those who are responsible for the management of the Hungarian intellectual property protection to prepare the technical developers and the innovative small enterprises for the expected effects. The R&D utilisation of the poorer member states is in danger Why would it be disadvantageous if patents are cheaper, furthermore, why does it endanger the interests of the underdeveloped countries in technological innovation? No doubt that the unitary patent has advantages and disadvantages as well. The problem is that advantages are present in the rich and developed countries and companies, however, disadvantages are present in small and technologically underdeveloped countries. Namely, patent is an exclusive right. The patent holder has the exclusive right to tell who can utilise the invention. As we indicated earlier, up to the present, in Hungary 3000 foreign patent right controlled the developers every year. With the starting of the unitary patent this number will run up to 60 000. Foreign companies will be cautious at the beginning, many of them will choose the traditional way, then experiencing the advantages of the unitary patent, and they will switch gradually to this legal form, which after a short period of time will 3 stimulate the number of European patent applications, according to EU estimation with 23%. After the introduction of the unitary patent those who validated their patents only in Germany, Great Britain or France, presumably will choose the unitary patent. In this case, they will, so to say, get the small countries’ patents as a present. Due to the cumulation of the patents’ number, the developers from the small countries soon will face hundreds of thousands of exclusive rights that as landmines will control their developments’ utilisation. One part of the R&D sources will rest in blocked developments or will be spent on infringement proceedings. This might block the delicate balance of the innovation circle. Despite the growing R&D source in the economy, if it cannot be utilised properly, the small countries are unable to move forward. Poland prepared an impact study and decided not to ratify the cooperation, yet. Until now the exclusive rights were usually accessible in national language, after the unitary patent the claims including the exclusive rights will be available in English only. Not that the developers do not speak English, however, to understand the claims in our national language is also not easy, not to mention a long technical-legal sentence twisted through 2 pages in English. One might ask, what are the advantages of the unitary patent for the small countries? Two third of the European patents are not even European, and a minimal amount originates from small EU member states. As an example, the amount of the European patents with Hungarian origin is a rate of 0,07%. Unitary patent may be advantageous for them. However, this advantage will not arise in the reduction of costs. The fee of the unitary patent will be equal to as if we would validate in 5 countries. However, Hungarian patents were rarely validated in more countries before. But now, the patent protection will spread to a greater area. These advantages confront the above-listed significant disadvantages. The Hungarian Intellectual Property Office (HIPO) ordered an impact study from PricewaterhouseCoopers and was prepared in the spring 2014. The 113 pages long study clearly identifies the disadvantages of the unitary patent. According to its prognosis the amount of patent litigations increases tenfold and within a few decades the number of the 4 exclusive rights (landmines) will be 1.2 million. The study makes it likely that so called patent trolls will show up and that the Hungarian entrepreneurs will be in a potential defendant position. The study proposes the Hungarian government to ratify the cooperation only if the Hungarian innovation expenditures exceed the 1.8% of the GDP. It is estimated by 2020. It is however unfortunate, that the HIPO did not make the study available even for the innovation professionals. There is a solution We have indicated that the unitary patents as landmines block the developers’ work in small countries. Landmines, however, are dangerous only for those who do not know where they are and they step on them. The developer society in such smaller countries can be prepared for the recognition and deactivation of the landmines. The Hungarian Intellectual Property Association (HIPA) developed a training program that can be acquired over a short period of time. With the contribution of Pintz & Partners Patent, Trademark and Law Office LLC, a software has been developed that is able to detect landmines. Knowing what should be done and where the landmines are, the developer society of the small countries can be protected from the disadvantages. In order to do so, we need to prepare them, which takes time, approximately one year. Therefore, the one year postponement of the ratification for the technologically least competitive countries is necessary. The HIPA is ready to cooperate in sharing the training material and introduce the software’s use. Gyorgy Pintz, President Hungarian Intellectual Property Association
© Copyright 2024 Paperzz