Talk:Unitary patent

identical patent owners?

What are identical unitary patent owners? Just imagine a unitary patent is held by patent owner A and B, then there are two non-identical patent holders (A is not B)? Upon request for unitary effect, A and B should both be patent holder for the 25 applications (so the patent holdership should be identical for all designated states), but upon grant of unitary effect, we speak about a single unitary patent right, and not about a bundle of 25 rights anymore; so therefore for me "the same (group of) patent owners" seems to be the right formulation. L.tak (talk) 12:41, 30 July 2014 (UTC)

The term "identical patent owners (across all states participating in the enhanced cooperation for a unitary patent)" is supposed to say the exact same thing as the previous term "a single (group of) patent owner(s)". Basically the term "identical patent owners" was supposed to mean, that the ownership/holdership of the patent (held by A or A+B) is identical across all states participating in the enhanced cooperation for a unitary patent. I can also accept your counter proposal to replace "identical" with "the same", if this cause less confusion. In regards of the parenthesis "(group of)", I do not understand what you intend to say with this and would get rid of it, so that we can write "the same patent owner(s)". The alternative formulation which I suppose also could be written is "identical patent ownership". Danish Expert (talk) 13:09, 30 July 2014 (UTC)

But if it is "an identical holdership accros all countries" that still suggests the ownership of a unitary patent establishes multiple -but equal- ownership rights (all for A+B) in all countries, while the unitary effect gives rise to a single ownership right: the ownership throughout the whole unitary territory. Shall we change to "a single ownership (which may comprise multiple owners)"? L.tak (talk) 13:30, 30 July 2014 (UTC)

OK, accepted. Thanks for improving the formulation. Although the parenthesis in my point of view is excessive, as what it states is already implied by the word ownership (which is generally understood to be something which can be held both by single/multiple owners). So I prefer we skip the parenthesis. Danish Expert (talk) 13:41, 30 July 2014 (UTC)

duplication

I have removed the strained sentence from the following paragraph:

• Unitary effect can be requested for a European patent until one month after grant. However, according to the Draft Rules Relating to Unitary Patent Protection, unitary effect would be registered only when the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. In practice this mean that the first issued unitary patents, having its unitary effect limited to those states where the UPC Agreement had entered into force upon the grant of the patent, will still have local effect ensured by a "national" European patent in each of the other states participating in the "enhanced cooperation for a unitary patent" but where the UPC Agreement had not entered into force upon the grant of the patent.

The reason is that it is stated in that paragraph clearly that "attribution of unitary effect" is not retroactive and we say that national European patents remain valid where the unitary patent doesn't apply. I don't see the merit of this sentence... It looks a bit like a "temporary" effect sentence (until all have ratified this is the case, so it holds for the "first issued patents"), but it is possible it takes years (or even forever) before all will ratify. So we should not display this as an intermediate measure for the first patents. L.tak (talk) 16:41, 30 July 2014 (UTC)

In principal the info by the strained sentence can indeed be extracted from the first line. However, as I have argued earlier and still maintain, this strained line is kind of an "expert observation" that casual readers would not think of by the first catch of the eye, and hence I think there is great value to include it. Most readers would miss the point (if not reading the strained line), that a "patent with unitary effect" will always apply to all 25 participating states in the enhanced cooperation (to some by unitary effect, and in the rest by national EPs). Wikipedia policy allows for "commentary observations" to be added in those cases where the non-arguable observation would otherwise be missed by most readers. The line will be relevant to include, not only temporarily but permanently, for readers to understand that all 25 states were always covered - even by the first unitary patents - by either unitary effect or local effect. Danish Expert (talk) 17:00, 30 July 2014 (UTC)

But 1 sentence further we state: it does not effect states where the unitary effect does not apply (I have added that for convenience). What is the added value of an extra sentence (IMO: an extra sentence requires the energy of people read, so there should be real addnl information; or useful synthesis/summary). Would it be possible to add 3-4 for words to the last sentence in this set in order to satisfy your concerns (I am not capable, because I truly don't grasp them) L.tak (talk) 17:07, 30 July 2014 (UTC)

Maybe the last sentence should duplicate the UPC provision again? L.tak (talk) 17:14, 30 July 2014 (UTC):

• The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone (which includes participating member states, as along as they are not party to the UPC) will co-exist with the unitary patent.

No, the strained line is supposed to be the explanatory note for the real world consequence of the phrase in the preceding line "unitary effect would be registered only when the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not". If you seek a shorter formulation of my strained line basically saying the same (and still positioned as a follow-up line to the first in the paragraph) it could be:

• "This mean that all granted European patents with unitary effect will always apply to all 25 member states participating in the enhanced cooperation - to some by its unitary effect and to the rest (not yet having entry into force of the UPC Agreement) by national European patents with identical claims".

Do you prefer this shorter version? Danish Expert (talk) 17:31, 30 July 2014 (UTC)

But this explains nothting about that sentence, it only says something about the patents that fall outside the scope and which are treated in the next line... L.tak (talk) 17:44, 30 July 2014 (UTC)

The next line only focus on how unitary patents affect the national European patents in general, and does not emphasize the point that: "All granted European patents with unitary effect will always apply to all 25 member states participating in the enhanced cooperation - to some by its unitary affect and to the rest (not yet having entry into force of the UPC Agreement) by national European patents with identical claims". This is a separate point not covered directly by any of the other sentences in the chapter. I agree what the line states can be concluded indirectly if you carefully read the entire chapter including the notes. However, most readers reading it with normal speed, will miss realizing this extra point. Therefore I suggest we add my new reformulated version of the line (see the bullet point above), both because its shorter and more clear, compared to the previous strained one you removed. Danish Expert (talk) 18:34, 30 July 2014 (UTC)

But I don't see why we such a sentence is needed. Your point goes for all 38 countries and is still shaky, as it may immediately apply, but for many it will be considered retroactively never to have applied as translation requirements etc are not met (which makes the "always" very problematic). Which means also such a new sentence has to be read very carefully... Again, I don't see the added value of the sentence, and I think it will make the whole story too dense... I will wait and see what the input of others is (@Danlaycock:, @Edcolins:); I think we are not going to find a solution together.... L.tak (talk) 18:48, 30 July 2014 (UTC)

Agree that we can now wait for the opinion by TDL and Edcolins, before deciding what to do. However, I need to correct your last reply. My point does not go for all 38 countries as a certainty. The point is, that unitary effect can only be granted if all 25 participating member states are covered (the first group by unitary effect and the second group by national European Patents with identical claims). The same thing is not a pre-requirement towards the 13 EPC states + 3 EU states positioned outside the enhanced cooperation. This is exactly why my clarifying additional line provide an additional interesting point to the readers. Its not shaky at all to write "always". It is a fact that it needs to be always per the pre-requirement for granting unitary effect. I have temporarily added the disputed line to the article, so that the line and its chapter can be evaluated as a whole. Danish Expert (talk) 18:57, 30 July 2014 (UTC)

I haven't followed this closely, nor read all the sources, so I might be missing something. Yes the EP can have different claims for the 13+3 states, but to me that's really veering off topic of the subject of this article: the unitary patent. The important points with respect to the unitary patent are a) the EP must have the same claims in all 25 states; and b) it only applies to states for with the regulations apply. That some non-unitary states must have a national patent with identical claims and others can have a national patent with different claims doesn't really have any impact on the unitary effect of the EP. TDL (talk) 21:01, 30 July 2014 (UTC)

@TDL: Just to clarify, none of us suggested to extend the chapter with a line that non-participating states can have national EPs issued with differing claims. It was just part of the argument. The only disagreement we have, is whether or not its okay for our chapter to feature this additional clarification line:

• "This means that all European patents to which unitary effect is attributed will initially always apply in all 25 member states participating in the enhanced cooperation - to some as a result of the unitary effect and to the rest (which are not a party to the UPC Agreement) as a result of "national" European patents with identical claims."

I have argued it is good for the chapter to feature this clarification line, as its observational point is not trivial, and although it can be concluded if you carefully read the entire chapter including its notes, most readers will miss this point if its not directly stated. Point of having the line is basically to clarify that although the unitary effect from the starting date wont cover all the participating member states in the enhanced cooperation, the uncovered participating member states will still automatically always be covered by national European patents with identical claims. So in reality there is no difference patent property wise. Only difference is the legal papers and systems ensuring the patent property, meaning that patent holders of any unitary patent will always be protected with the same set of claims in all 25 participating member states - in some of those states by unitary effect and for the rest of them per the rules automatically by national European patents with identical claims (because otherwise the unitary effect can not be granted). Based on this argument, can you then approve my clarifying line in the bullet point above? Danish Expert (talk) 22:13, 30 July 2014 (UTC)

(Reacting anyway here, but denting out to give TDL the possibility to react) This discussion makes things a bit clearer indeed... The point you want to make Danish (if I am correct), is that the material difference in a non-unitary-territory participating county is relatively small, as exactly the same patent is granted. However, this is unnecessarily confusing, because in 99(.9??)% of the patents applied for after the flat fee, this will be the case (the situation of different claims is, as we state in the article extremely rare; and there are no good reasons for not designating a certain country except to file a national patent), which means that the patent will be granted with the same claims with designation for Turkey just as often as for Poland, and the emphasis on "the non unitary part of the 25" is undue here. (Furthermore, the material effect of having an equal national European patent in -say- Poland may be very different from the unitary regime, as the exceptions for breeder's rights don't apply there, national courts may invalidate easier, preliminary injunctions may or may not be available; so from the same basis, there will be very different interpretations). L.tak (talk) 22:43, 30 July 2014 (UTC)

@L.tak: No, the main purpose of my line was not to claim an existence of some insignificant difference between national EP and EP with unitary effect. The main purpose of my line was simply (as I started out to say in this discussion) to clarify how the unitary patent always will cover all 25 participating member states in the enhanced cooperation - some of the 25 as a result of unitary effect and the rest of the 25 as a result of national European patents with identical claims. I just think its a relevant observation that all 25 always will be covered one way or another. I do not say/claim there is no difference between unitary effect or national EPs, and agree with you that we still have significant difference between the two types. You are also correct that in 99.9% of the EP cases all 38 will be designated, but this also mean it would be incorrect to conclude that unitary patents always will cover all 38 EPC states. The point here is (as you already know), that the unitary effect can still be granted in those rare cases where the patent holder withdraw designations in some of the 13 EPC states which does not participate in the enhanced cooperation. To me its just a factual peculiarity of the unitary patent (and therefore important to note in the article), that as a consequence of its grant we can always be certain that 100% of those granted unitary patents always will cover all 25 participating member states one way or the other. Beside of working as a clarification line to its preceding line, I also think the line work fine as a bridge to the next paragraph elaborating in more details about the national European patents. Reading the chapter from top to bottom, I think the structure is good, and that it all make good sense. Danish Expert (talk) 23:18, 30 July 2014 (UTC)

Well, that's for me indeed little additional value for what is indeed an interesting observation, which will hold in the first month or so after grant (before all the translation requirements etc kick in), but in view of the small difference there is with the other 10 countries, the differences that are there anyway (as highlighted above), and the short term that the observation is valid, and the fact that this observation concerns the non-unitary part mainly, makes it for me not useful to add it here (go in waiting mode again to see if we get any more observations from others)... L.tak (talk) 23:33, 30 July 2014 (UTC)

My point was along the lines of L.tak's. We already have notes which explain that the EP by default covers ALL EPC states, that usually the patent has the same claims in all states ("This rare situation..."), and that the unitary effect can only be granted if the EP has the same claims in all 25 states. The only reason to include the sentence that you propose is to reiterate that for the non-unitary states among the 25, they MUST have identical claims rather than nearly always. This seems like belabouring the point when this can be deduced from the previous sentences, and is tangental to the subject of this article. TDL (talk) 01:53, 31 July 2014 (UTC)

Solution for an appropriate clarification line in the "Geographical scope" chapter

Again, the main purpose of the line was not to provide new info - but to function as an observational clarification line making it much easier for casual readers to understand the full meaning of the previous line (which if standing alone can be hard to understand by the first catch of the eye of a casual reader). L.tak posted a valid point above, that if the translation requirements after grant of the supplementing national European Patents (in certain states) is not met, then this will cause those supplementing national European Patents to be dissolved retroactively. This fact, which I admitted had overlooked, indeed reduces the importance of the additional point provided by my added (now disputed) line, from "important" to "less important" (because of the need to replace the word "always" with "initially always"). However, this does not change my mind, that I still think the line should be added as a "clarification line", serving the single "clarification purpose" to make the previous line more easy to understand by casual readers. Before we make a final decision on this, I would welcome other editors to tune in and post their opinion, whether or not the disputed italic line is good/bad to be featured in this paragraph below:

• Unitary effect can be requested up to one month after grant of the European patent, with retroactive effect from the date of grant. However, unitary effect would be registered only when the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. This means that all European patents to which unitary effect is attributed will initially always apply in all 25 member states participating in the enhanced cooperation - to some as a result of the unitary effect and to the rest (which are not a party to the UPC Agreement) as a result of "national" European patents with identical claims. Upon the grant of unitary effect, the "national" European patent will retroactively be considered to never have existed in the territory where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.

When reading the bullet-point above, the italic line in my point of view both "translate" how the same set of claims in the 25 states will be covered after the grant of the unitary effect. Some will be covered by unitary effect (which can be looked up in the unitary effect register), while the rest by national European Patents with identical claims (which can be looked up in the usual European patent register). The disputed italic line also work as a bridge to the next three lines, elaborating on how "unitary patents" and "national European patents" will co-exist. All in all, I think the italic line both make its preceding sentence more understandable and help to glue the paragraph together, which is why I still support to keep it. Danish Expert (talk) 10:58, 31 July 2014 (UTC)

The statement "will initially always apply in all 25 member states", while attempting to clarify a point just raises another question "why just initially"? Without further explanation about the possibility for patents to be revoked, etc., readers are just going to be left confused. And such an explanation would be taking us even further off topic. TDL (talk) 17:17, 31 July 2014 (UTC)

@TDL: The further explanation you request could always be covered by a "note 10" behind the word "initially", without sacrificing the density/complexity of the line. IMO its on the border of the topic - and not completely off topic. However, a compromise for my "clarification line" could perhaps also be that we reformulate it into this:

• Unitary effect can be requested up to one month after grant of the European patent, with retroactive effect from the date of grant. However, unitary effect would be registered only when the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. This means that all European patents to which unitary effect is attributed will initially comprise 25 "national" European patents with identical claims. Upon the grant of unitary effect, the "national" European patents will retroactively be considered to never have existed in the territories where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.

At least this simplifies what we say and do not touch upon. Can you accept the above counter proposal? Danish Expert (talk) 18:53, 31 July 2014 (UTC)

(Besides grammatical points), it is still a sentence that strongly suggests that there is something very special about "the 25", and I think that is not the message we need to convey. I see no reason to warrant mentioning the 25 while discussin impementation, and keep my objections (which I have reitterated before, so I am not going to repeat them)... L.tak (talk) 07:40, 1 August 2014 (UTC)

Just to clarify, the purpose of the rephrased line is no longer to mention "the 25", but now simply just to introduce the term "national" European patents. Most casual readers will not know in advance what a "national" European patent is, and that its actually the initial part of the "unitary patent". The rephrased line will help in that regard. To address your concern that we only speak of "25", I can accept we change it to "minimum 25". Danish Expert (talk) 08:27, 1 August 2014 (UTC)

I was thinking yesterday that the article doesn't really do a good job summarizing what an EP is. It's discussed in the lead, but ideally the lead should just summarize what is in the body. Perhaps the solution is to create a new section which gives some background explaining what an EP is. TDL (talk) 17:52, 1 August 2014 (UTC)

I think that would be a good conclusion in general; and it would prevent us from having to add this sentence (which still raises lots of questions; and doesn't solve the concerns regarding a focus on the 25)... L.tak (talk) 21:29, 1 August 2014 (UTC)

I have been bold and made a start. There was no consensus developing here on the disputed sentence, despite very lengthy debate; and in this way the we have a good introduciton that focusses on the specifics. What is missing in the article now is a balance between ratification/history etc and actual content regarding the unitary patent, but that is for later... L.tak (talk) 21:43, 1 August 2014 (UTC)

Further clarification

When I first read the sentence

"This means that all European patents to which unitary effect is attributed will initially comprise minimum 25 "national" European patents with identical claims."

(before reading the discussion on the talk page), I frankly could not understand it. I have tried to clarify it... --Edcolins (talk) 20:19, 1 August 2014 (UTC)

Thanks for your respons and further clarification of the line to this phrase: This means that all European patents to which unitary effect is later attributed will initially –at the date of grant– have been a bundle of minimum 25 "national" European patents with identical claims. I was quiet happy with your version of the line. For me its important to stress L.tak + TDL both voiced concern that the initial two versions of the "clarification line" featured redundant content. However, TDL did not explicit state above whether or not he was still concerned about my latest third version or your fourth version, but just responded with the above great observation (which I support), that the article in general would benefit of a small chapter going into more details about the nature of European Patents. However, as L.tak clearly subsequently has maintained his objection towards our 3rd and 4th version, I have now in a last 5th attempt to clarify how the term "national" European Patent is related to a unitary patent, copied the most essential part of your version of the clarification line into being an integrated part of the preceding line. The extra added "clarification words" has been marked with bold text in the bulletpoint below:

• 5th version: Unitary effect can be requested up to one month after grant of the European patent, with retroactive effect from the date of grant. However, unitary effect would be registered only if the European patent first has been granted – as a bundle of "national" European patents – with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. Upon the grant of unitary effect, the "national" European patents will retroactively be considered to never have existed in the territories where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.

I sincerely hope this above 5th clarification attempt, now can reach consensus among all of us. Best regards, Danish Expert (talk) 07:07, 2 August 2014 (UTC)

I am fine with your proposal. --Edcolins (talk) 08:50, 2 August 2014 (UTC)

But it is not true... A European patent is not granted as a bundle, but as a singular thing: the European patent. Afterwards, it falls apart in (up to) 38 national rights (see the definition discussion in the not of our new European patent section). The grant as a European patent bundle is thus an effect of the European Patent convention system, but the legal requirement for a unitary patent is not a European patent bunldle, but that the European patent (the singular thing that has been investigated) has been granted... Again and again, this is about the European patent being granted with the same set of claims for the whole territory, which is what is stated in the sentence before... L.tak (talk) 08:03, 2 August 2014 (UTC)

Regarding whether the European patent is a bundle of European patents in the designated States see reference 1 in the article "European Patent Convention" (two different views expressed by scholars in that respect). Upon grant, a European patent directly becomes a bundle of European patents in the designated States, the European patent remains one for the purpose of centralized opposition, limitation and revocation. --Edcolins (talk) 08:15, 2 August 2014 (UTC)

(edit conflict) One more suggestion in addition to the many other things suggested:

Upon the grant of unitary effect, the "national" European patents (which automatically come into existence upon grant) will retroactively be considered to never have existed in the territories where the unitary patent has effect. L.tak (talk) 08:18, 2 August 2014 (UTC)

This makes sense. --Edcolins (talk) 08:43, 2 August 2014 (UTC)

Also OK with me, if you want to add it as an addition to the above 5th version. If it was meant to be an alternative 6th counter proposal replacing the 5th, then I however still prefer the 5th bundle version compared to your 6th parenthesis version. When reading the 5th version, casual readers will IMO not misunderstand that the European Patent by itself administration wise is a singular thing - despite comprising a bundle of "national" European patents. I think its only a plus to introduce the "bundle" word, as it help create the correct picture in our minds of what it really is. Danish Expert (talk) 09:22, 2 August 2014 (UTC)

no, i meant It as a separate version, as the previous sentence had the problem that it should link to the EP as a singular thing, while in the parenthese location a bundle interpretation is defendable, we could add the word bundle within the parenthesis though... L.tak (talk) 09:59, 2 August 2014 (UTC)

If I may add my five cents here. We shouldn't give the impression that the European patent must first become a bundle of European patents (in the states participating to the unitary patent) before being granted the unitary effect. I expect that it should be possible to obtain the unitary effect immediately at the date of grant, see my question "Requesting unitary effect by anticipation?" below. --Edcolins (talk) 10:53, 2 August 2014 (UTC)

Well, indeed we cannot exclude that possibility... I think my "parenteses" version (suggested as version 6 below; and the same as suggested yesterday, but with a bundle statement as danish requested) incorporates it:

• 6th version: Unitary effect can be requested up to one month after grant of the European patent, with retroactive effect from the date of grant. According to the Draft Rules Relating to Unitary Patent Protection, unitary effect would be registered if the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. Upon the grant of unitary effect, the "national" European patents (European patens automatically become a bundle of "national" European patents upon grant) will retroactively be considered to never have existed in the territories where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.

— Preceding unsigned comment added by L.tak (talk • contribs) 17:39, 3 August 2014‎

Ed attempted to solve his concern for misunderstanding by adding to - - signs around the words, in his latest sentence edit, which helped emphasize the point that its not a separate requirement - but something which is automatically implied when the European patent is granted. Retroactively, I accepted this edition into my above 5th version above, without making note on this here on the talkpage. This is just to clarify, that we first attempted to modify version 5, in order to address this concern. However, I can accept your version 6 to make it even more clear. Just for the purpose of minimizing sentence length, I will however propose we move the parenthesis line into a separate preceding line (without any rephrasing), as this 7th version:

• 7th version: Unitary effect can be requested up to one month after grant of the European patent, with retroactive effect from the date of grant. According to the Draft Rules Relating to Unitary Patent Protection, unitary effect would be registered if the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. European patents automatically become a bundle of "national" European patents upon grant. Upon the grant of unitary effect, the "national" European patents will retroactively be considered to never have existed in the territories where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent.

Can you accept this slightly different 7th version? Danish Expert (talk) 08:15, 5 August 2014 (UTC)

References

Notes

Legal problem of retroactive unitary effect ?

This point disturbs me a lot. Hence I would appreciate responds/opinions if this may or may not be an issue. The unitary patent rule 5.I.3 and article 18.2 of regulation 1257, both states that:

• Unitary effect of a European patent will extend to the territory of those participating member states to which the UPC Agreement has entered into force - as of the registration date of the unitary effect.

The legal issue hunting me, is that the unitary effect as per the rules are also granted with retroactive effect, so that it will actually begin on the day the national EP was granted. This mean, that cases can arise where the unitary effect retroactively applied in a state ahead of the date when the unitary patent regulation legally applied for the state! In example, we could imagine that a state will have "appliance of the unitary patent regulation" on 1 August. Then a request for unitary effect submitted 14 August (with the registration date of unitary effect being the same or later) for a patent granted 15 July, will result in a situation where the unitary effect is retroactively granted starting from 15 July, equal to 17 days ahead of the legal appliance of the unitary patent regulation in the state. How can such a thing be possible without creating potential legal problems? In the start I - for the same reason - assumed territorial extension of unitary effect was decided "as of the situation on the granting date of the EP" rather than on "registration date of the unitary effect". When finding out this is not the case, I now need an explanation how this is legally possible. Danish Expert (talk) 16:37, 31 July 2014 (UTC)

Well, I am not providing legal advice, but, the way I see it:

1. The regulation is already in force (for all participating member states)
2. After Entry into force of the UPC (with the 10+3 ratifications), the regulation will apply (in all participating member states)
3. The territory of the unitary effect area will gradually increase

There is thus no true retroactive effect with regards to the regulation. However, this does mean that the unitary effect may apply on a moment when the UPC is not effective there. So what would happen if infringement would take place a few days after grant of the patent; would it be possible to sue regarding such an infringement? Can one for a "classical" European patent be sue for infringement taking place (years?) before Entry into Force of the Agreement? L.tak (talk) 18:32, 31 July 2014 (UTC)

Thanks for your reply. Your point 1+2 partly explains (as you noted above, it explains the part that we at least do not have retroactive legal problems attached to "entry into force" of the regulations). This morning, I briefly searched a little bit more for answers to the second part of the potential legal issue. So far, my only finding is this Article 4.2 in regulation 1257:

• "The participating Member States shall take the necessary measures to ensure that, where the unitary effect of a European patent has been registered and extends to their territory, that European patent is deemed not to have taken effect as a national patent in their territory on the date of publication of the mention of the grant in the European Patent Bulletin."

Of course this did not help much, other than confirm what we already knew (that these initial national EPs automatically will be dissolved, leaving the jurisdiction for the patent solely for the UPC, starting from day one where the unitary effect will apply). It still leaves me with the same set of legal limbo questions you posted above, including: How UPC retroactively can have jurisdiction in a state during times ahead of the states entry into force of the UPC agreement? If we just can find some sources elaborating a little bit more on this, I think it could be some interesting content worth adding to the article. :-) Danish Expert (talk) 09:32, 1 August 2014 (UTC)

On a sidenote, the above observation point 2 written by L.tak, that the regulation will apply collectively for all 25 participating states on the same date, was something I first had overlooked (because after my first reading of Article 18 in Regulation 1257 I had misinterpreted the words, thinking they most likely meant, that appliance of the regulation would happen only one by one (gradually) for each participating member state upon the time of its ratification of the UPC Agreement). Now after my second more careful read of Article 17.2+18.5, I now fully agree on the above observation point 2. The way I understand it now, is that the unitary patent regulations indeed will apply overall collectively for all 25 participating member states in the enhanced cooperation - as of the date when the UPC Agreement enters into force overall for the first group of (minimum 13) ratifiers, while however the unitary effect of a Unitary Patent - as per the derogation clause outlined in Article 18.2 - only will apply individually for each participating member state starting from the date of its local entry into force of the UPC Agreement. After realizing this, I found out today that we also needed to rephrase 3 appliance formulations in the article, so that they more accurately reflect this situation. This is why, I just rephrased the 3 lines into this new version. Of course this rephrasing was just a separate issue arising from our debate. We still have the unsolved legal questions attached to the "missing jurisdiction by UPC" for territories where a retroactive grant of unitary effect will cover a period in which the territory did not yet have entry into force of its UPC Agreement. Danish Expert (talk) 12:23, 3 August 2014 (UTC)

(thanks for the rephrasing; I have taken the liberty to shorten a bit; as I prefer a text where the practical effect is visible first (and the legal formalities might diffuse this a bit...). As to the rest: it's a question indeed that we didn't solve, but the practical importance of it will be small, as the period this may happen is short (and only for those territories receiving unitary effect then), and as there will generally be sufficient basis for a simultaneous infringement in multiple territories (note that both manufacturing, sales, advertising (including by internet!), transport may be infringment actions); or a continuing infringement 1/2 months later; I think the matter is in practice mainly an academical one.... That doesn't mean it doesn't interest me, but it probably is not sufficiently notable for inclusion (unless some buzz around this will be available in reliable sources maybe....) L.tak (talk) 17:29, 3 August 2014 (UTC)

Requesting unitary effect by anticipation?

Will it be possible, before grant, to anticipatorily request the unitary effect (once the decision of grant has been announced, but not yet in force), so that the unitary effect is applied immediately upon grant? --Edcolins (talk) 09:07, 2 August 2014 (UTC)

I am not sure, but accoriding to the (draft) EPO rules such a facility seems not explicitly available. While they indicate there will be automated systems for request etc, it all seems to start from the moment of formal publication of the grant; but indeed, it only says that it can be "registered" if there is a patent, not that it can be only applied for only when there is a patent... L.tak (talk) 12:42, 2 August 2014 (UTC)

Also found no info about this. But just want to add that the unitary effect per the rules always will apply retroactively from the day of grant of the European Patent. In that sense, it does not matter when the request for unitary effect was filed. As the unitary effect territory expands with time and as it is fixed for your European Patent only at the "date of registration of unitary effect" while still applying retroactively from the granting date, some might prefer to apply for the unitary effect as late as possible in the process - meaning one month after grant (at least if it does not entail the set of legal limbo problems, we discussed in the talkpage debate above). Danish Expert (talk) 14:44, 2 August 2014 (UTC)

One of the European Commission FAQs [1] reads:

"10. How can an applicant apply for a 'unitary patent'?

(...) no later than one month from the date on which the grant of the European patent has become effective, the patentee can request the EPO to register the unitary effect in the European Patent Register. In the case of such a request made after the grant, the patent will take effect retroactively (from the mention of the grant) in the 25 participating Member States without any additional validation requirement. (...)"

This seems to mean that the request can be made before grant... --Edcolins (talk) 15:59, 2 August 2014 (UTC)

Yes, but I think we need to be careful extracting this conclusion from the FAQ-list, as several of the wordings are simplified - resulting in several wrong conclusions if interpreted literally. In example, in the line you copied above they wrote "in the 25 participating Member States", while they should have written "in those of the 25 participating Member States for which the UPC Agreement has entered into force". How it exactly plays out in regards of the unitary effect appliance procedure, should be a subject for the Select Committee's exact rules to clarify upon. Perhaps the next set of draft rules will help clarify it? Btw do some of you know what the schedule is for a release of the next/final version of the draft rules? Danish Expert (talk) 16:22, 2 August 2014 (UTC)

This morning I looked-up the status for the draft rules. The latest EPO communique states:

• The Select Committee has [at its 9th meeting on 24 June 2014] adopted in principle the Draft Rules relating to Unitary Patent Protection, with the exception of some technical aspects that require further discussion and one rule relating to financial aspects that will be discussed after the summer holiday together with other financial issues.

Perhaps the option for "unitary request filed before grant" could be one of these "technical aspects"? The next 10th Select Committee meeting will be held on 28 October 2014, and I think we should look out for the final rules to be published a couple of weeks ahead of the meeting, so that they can be completely adopted - without any reservations - by the Committee on 28 October. Danish Expert (talk) 09:26, 5 August 2014 (UTC)

lede

In the lede recently info was added that the regulations will apply to all participating member states, but that the territorial extent only covered the countries for whom the UPC Agreement has entered into force; and that that is due to a derogation:

• Old version: The provisions in the unitary patent regulations will apply for a participating member state in the enhanced cooperation, from the date when the related Agreement on a Unified Patent Court enters into force for the state.
• New version: The unitary patent regulations will apply collectively for all participating member states in the enhanced cooperation, from the date when the related Unified Patent Court Agreement overall enters into force, but due to a derogation clause the unitary effect of a unitary patent will only extend to the territories of those participating member states for which the UPC Agreement had entered into force upon the registration date of unitary effect.

I think the abstract should indicate the most important thing: when does it [roughly, we are not hairsplitting the first month of application after a new country ratifies the UPC] cover which countries. The rest is explained at length elsewhere and is not needed here. Views are welcome… L.tak (talk) 12:46, 5 August 2014 (UTC)

Our current debate arose as a result for the need to replace the old version by a new more accurate one, to reflect the unitary patent regulations will begin to apply collectively for all 25 participating member states from the same date, while this by-itself doesn't mean the unitary effect (or unitary patent) from the same date will cover all 25 states. My main insistence, no matter how we formulate it, is that the line shall tell both "when the unitary patents will become applicable" and "how their unitary effect at any given time is decided". IMO both these facts are key to the article, and thus appropriate to put in the lead. Once the Unitary patent regulations apply collectively, I can accept we reformulate the line into something reduced, like this:

• The unitary patent regulations has applied for all 25 participating member states in the enhanced cooperation since [Day Month Year], but the unitary effect of a unitary patent only extends to the territories of those participating member states for which the UPC Agreement had entered into force upon the registration date of unitary effect.

However, for now, I prefer to keep the new more detailed version in the lead (as it stands in your point above - including the note), for the reason that we also need to have a certain clarification level of key details in the lead. If the words "due to a derogation clause" is not needed for clarification, I can accept those words to be removed, but think the rest should stay. Danish Expert (talk) 13:40, 5 August 2014 (UTC)

I agree fully we need to write down when the unitary patents become available (at EIF of the UPC -you say: overall, but that is always with the entry into force of a treaty)and how their unitary effect will be decided (for those countries where the UPC applies when the EP was granted); but why would we need an entry into force criterion for the Regulation for that? This is a detail that got us thinking in the last week; that doesn't mean it is notable for the lede... And the fact that the distinction is hardly made in reliable sources is an extra argument for that. Shall I make a sentence incorporating those two things? L.tak (talk) 17:20, 5 August 2014 (UTC)

• Alternative 1: Unitary effect will be issued from the date when the Unified Patent Court Agreement enters into force, Unitary effect will be applicable to European patents in the participating member states for which the UPC Agreement had entered into force upon application. L.tak (talk) 17:24, 5 August 2014 (UTC)

Another alternative is to use the old version, with very small changes highlighted:

• Alternative 2: The provisions in of the unitary patent regulations will apply for a participating member state in the enhanced cooperation, for European patents granted after from the date when the related Agreement on a Unified Patent Court enters into force for the state for them. The legality of the two regulations was challenged by Spain, which filed two actions for annulment that are currently pending before the European Court of Justice. L.tak (talk) 17:33, 5 August 2014 (UTC)

I think we should read/discuss the paragraph as a whole. The preceding lines are about the political pass of the regulations and the last line is all about that the legality of the regulations currently being judged by CJEU. Thus its fully appropriate my reformulated new version of the line tells us how the regulations decide when unitary patents become applicable and how their unitary effect at any given time is decided. So I see nothing wrong with the New version formulation. If we remove the lines reference to the regulations (use of the word), first-time readers will not understand the significance and context of the preceding and following line.

The reason why the "New version" line uses the expression "overall entry into force", is simply to differentiate, helping to understand this first "unitary patent becomes applicable" requirement is different compared to the second unitary effect requirement "entry into force in the concerned state". An acceptable alternative to the expression (if you do not like the word "overall"), is to write "entry into force for the first group of ratifiers".

As I read your reply, you also object that it is too detailed (and not meeting the notability level) to include the phrase "due to a derogation clause". As per my previous reply, the initial reason for including this phrase was to explain why a fully applicable regulation for all 25 do not fully apply for all 25 from day 1 - and in fact by introducing the word "derogation clause" we also prime the minds of readers to be aware, that for a state to be one of the 25 in the "enhanced cooperation for a unitary patent" does not at all mean this state will be legally bound in the future to introduce unitary patents covering its territory (which as you know, provide an escaping door for the state Poland, that recently got cold feeds). However, I accept this phrase to be removed again, per your argument that it is probably too detailed info for the lead, and per the argument that the line can also fully be understood without. Suma sumarum the new adjusted version is now this italic line in the middle of the paragraph:

• New adjusted version: Agreement on the two EU regulations which make the unitary patent possible was reached during the European Council of 28–29 June 2012, and by the European Parliament on 11 December 2012. All EU member states, except Spain, Croatia and Italy, have opted to join the enhanced cooperation for a unitary patent. The unitary patent regulations will apply collectively for all participating member states in the enhanced cooperation, from the date when the related Unified Patent Court Agreement enters into force for the first group of ratifiers, but the unitary effect of a unitary patent will only extend to the territories of those participating member states for which the UPC Agreement had entered into force upon the registration date of unitary effect. The legality of the two regulations was challenged by Spain, which filed two actions for annulment that are currently pending before the European Court of Justice.

After this simple reduction, I now prefer to keep the above "New adjusted version" compared to your two counter proposed alternatives. Danish Expert (talk) 05:05, 6 August 2014 (UTC)

Giving it a second thought and try, I just came up with this new "Alternative 3" formulation for the lead paragraph. Besides of reformulating the disputed line, it also introduce a reformulated first line and move up the last line to become the second line of the paragraph.

• Alternative 3: Final agreement on the two EU regulations, which made introduction of the unitary patent possible at EU level through enhanced cooperation, was reached between the European Council and European Parliament on 17 December 2012. The legality of the two regulations was however challenged by Spain, which filed two actions for annulment, that are currently pending before the European Court of Justice. All EU member states, except Spain, Croatia and Italy, have opted to participate in the enhanced cooperation. Unitary patents will become available as conversion offers to all holders of newly granted European patents, from the date when the related Unified Patent Court Agreement enters into force for the first group of ratifiers, but the unitary effect of a unitary patent will only extend to the territories of those participating member states for which the UPC Agreement had entered into force upon the registration date of unitary effect.

Among all available proposals, I now prefer the above "Alternative 3", and hope it can reach consensus support. Danish Expert (talk) 08:50, 6 August 2014 (UTC)

Let me try to adjust Alt3 to an Alt4... It is a bit shortened, but (I suppose) keeps the main points you want to add in. Note that "at EU level" is not fully covering the fact that the regulations are also special agreements for the EPC, and thus it made them also within the EPC possible. I have added the 4 court actions, in order to avoid newsiness and shortened where possible. L.tak (talk) 17:55, 6 August 2014 (UTC)

• Alternative 4: Formal Final agreement on the two EU regulations, which made introduction of the unitary patent possible at EU level through enhanced cooperation, was reached between the European Council and European Parliament on 17 December 2012 [note: we have to check if this is the case for Council; but that is a technicality]. The legality of the two regulations was however challenged by Spain, which filed two actions for annulment, that and Italy, who filed in total four actions for annulment, two of which were rejected, and two of which are currently pending before the European Court of Justice. All EU member states, except Spain, Croatia and Italy, have opted to participate in the enhanced cooperation. Unitary patents will become available as conversion offers to all holders of newly granted European patents, Unitary effect of newly granted European patents can be requested, from the date when the related Unified Patent Court Agreement enters into force for the first group of ratifiers, but the unitary effect of a unitary patent and will only extend to the territories of those participating member states for which the UPC Agreement had entered into force applies upon the registration date of unitary effect.

I can support inclusion of alternative 4 with a few subsequent adjustments:

• The formal conclusion date of the political agreement can not be disputed to be anything else than 17 December 2012, because this was the date the final version of the regulations were jointly signed by the Council president and EP president - which is indicated in the very title of the two published regulations.
• The stroked "EU level" words were of course meant to say that participation in unitary patents only is possible at the "EU level". However, I agree it could be misread in "Alternative 3" and lead to the wrong impression that the unitary patents is a new instrument operated by EU-institutions (which as you replied above, is not true). Instead of striking the words, I however propose a simple move, so that the end of the concerned line instead states "enhanced cooperation at the EU level".
• In regards of the long disputed line, I can accept your alternative formulation as it basically say the same as the one in "Alternative 3", so this is just a question if we want to emphasize the term "unitary patent" or the term "unitary effect". As the article name is "unitary patent" my first approach in "alternative 3" was to use the term "unitary patent" and then explain how "unitary effect of unitary patent" was related to it all. However, I can also see your argument that saying it the other way around can be more elegant and less clumsy, and can accept to keep it that way, but only because the opening line of the lead is already emphasizing that "unitary patent = EP with unitary effect".
• Finally, in regards of the last line I insist we use my "Alternative 3"-version, using the phrase "had entered into force", instead of your "applies". Reasons for my insistance are: 1) the phrase "Enters into force" is already mentioned in the first half of the line - and then its better to be consistent by continuing to use this phrase for the second half of the line - instead of introducing the "apply" phrase which might lead readers not familiar with the subject to wonder if their might be a difference between "apply" and "enters into force", 2) Its best to use the phrase "entered into force" because its not always the case that the "apply date" for agreements is the same as the "entry into force date" (I know it is here, but for the sake of removing uncertainty and not forcing readers to check by themselves, I think its best to stick with the "entered into force" phrase).
• In the note (which previously had been tacitly consensus accepted for at least a week) you also made the following 3 changes (italic=new words, strike=old words deleted): All EU states may ratify or accede to become a party to the Agreement. Entry into force for the first group of ratifiers of the Agreement requires ratification by Germany, UK, France and at least ten [note: this is the requirement, with 11, this requirement is automatically met] additional states. Several states have initiated ratification procedures. As of July 2014 it has been ratified by five. I do not agree on any of those 3 proposed changes. "Ratify or accede to" is IMO far better to use compared to "become a party", for the reason that many people think that you "become a party" already starting from the date you signed the agreement, while the expression "ratify or accede" emphasize that you first truly become a part of it if and only if you deposit your ratification/accession instrument. Its fully possible states my sign the UPC agreement but never confirm the signing by depositing their accession/ratification instrument. So for this reason its better to use the phrase "ratify or accede" rather than "become a party". In regards of the second proposed change, I think its inappropriate to change the note's focus on the requirement for "entry into force for the first group of ratifiers", because the note is now appearing in a sentence dealing with exact this issue "entry into force for the first group of ratifiers". Moreover, I fear it might create confusion for casual readers suddenly to read about the overall "entry into force of the agreement", when we in the remaining part of the lead line speak about "entry into force for the first group of ratifiers" and that unitary effect extends to those of the states which had "entry into force upon the registration date". So its better to stick with "entry into force for the first group of ratifiers". In regards of the third change where "at least ten" was deleted, this does not make any sense to me. The UPC "entry into force criteria" was 100% correctly stated to be "Germany, UK, France and at least 10 additional states". It can never be less than 10, as minimum 13 needs to ratify. Plus the phrase "at least" is just another way to say "minimum". So its best to keep the existing version.

Hope you can all accept my few explained insistence points above, of which I find none to be radical/controversial. Danish Expert (talk) 09:47, 8 August 2014 (UTC)

in the interest of drawing this not out any further, I agree with the proposed changes. I am not sure I would say any of the changes in the note are improvements (note article 89 which speaks about a general EIF, not specific to the first ratifiers, and speaks about "takes effect" rather than "enters into force for them, so I am probably not the only reader that would interpret this casually....), but let's keep it the way it is for now and move on to the substantial elements of the agreement... L.tak (talk) 11:50, 8 August 2014 (UTC)

References

Notes

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merge schedule with lead paragraph

Now that the time plan is much clearer, I suggest merging the schedule with the intro. Also I would remove mention of the complainant at the federal court of Germany as this is distracting and no longer relevant as Germany ratified after the second vote. — Preceding unsigned comment added by EPA7931 (talk • contribs) 04:04, 22 February 2022 (UTC)

I suggest also following changes: remove the notes, as I find they interrupt the flow of reading of the article with little added value, move the paragraph about classical EP patent to the EP patent section, move the recent development present in the schedule to the lead and older event in the schedule to the legislative background. Since there has not been any update for a long time (apart from the map), if I do not hear back I will do this this week. I would also shorten a lot the EPO section and the UPC patent section as they are independent article of these, so the rather long development is not needed in this article, in my view. — Preceding unsigned comment added by EPA7931 (talk • contribs) 22:01, 22 February 2022 (UTC)