Talk:Unitary patent/Archive 1

Archive 1

Rewrite 2004

This rewrite was partly motivated by the recent failure of the Council of Ministers to agree on a resolution of outstanding issues, leaving the Regulation dead in the water. Also I've aimed to update some of the slight inconsistencies, and some duplication. Some still remain, but I have a day job!--Baggie 08:58, 26 May 2004 (UTC)

Name change

I changed the name to EU Patent to reflect the new terminology of the Lisbon Treaty. The article needs some more housekeeping, which I plan to attend to soon. Cheers, --Dailycare (talk) 21:31, 6 January 2010 (UTC)

Revert

I have reverted the changes made based on this source: [1]. The source does not seem reliable enough IMHO. Furthermore, the statement added in the article "These are very expensive to obtain, the cost of a European patent is on the order of 20 times more expensive than a patent in the United States" is vague and does not reflect the material in the source.

• The words "the European Commission has suggested EU governments should accept patents in English, French or German." is vague. What does it mean? Should accept national patent applications? Should accept European patents?
• The wording "to register a patent" is vague. Does this include prosecution before grant or just the additional steps required after grant? No clue.
• "€1,850 in the US to register a patent"? Come on. See for instance [2] [3]...
• The source does not mention the London Agreement (2000) which already partially addresses the translation cost burden.

--Edcolins (talk) 15:56, 4 July 2010 (UTC)

June 2012: shaky agreement?

L.tak, thanks for all the good work. There is one thing that could be added in the "Unified Patent Court" section after "The proposal does not include the possibility for the court to refer a legal question to the European Court of Justice, due to opposition from the United Kingdom"... which, I understand, follows from the "suggestion" to delete Articles 6 to 8 of the Regulation [4] ("We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted."). But would this comply with EU law? See [5]. If not, the whole agreement would be shaky, since this seems to be a central issue [6] ("Mr Cameron offered to withdraw his call for the court to be in London if the European Court of Justice – the EU’s highest court – were stripped of ultimate jurisdiction over Europe’s reformed patent system."). --Edcolins (talk) 10:18, 30 June 2012 (UTC)

Complicated indeed. I have no idea what the loophole is they envision; and I already had the feeling I was venturing in OR-territory in interpreting the council conclusions coupled to the present draft articles (it could also be the "elegant way out" for Cameron: council suggests removal: Parliament refuses; and they go on in view of the importance of the matter). I suggest t wait for some of the commentaries on this to appear in the next few days (yesterday, there was virtually only enthusiasm in the press) and add a bit once critical commentaries appear... L.tak (talk) 11:16, 30 June 2012 (UTC)

Yeah, let's wait to see what comes after the self-congratulating press releases... --Edcolins (talk) 16:25, 30 June 2012 (UTC)

I've just come back from being away most of July - fascinated to discover what's been happening. I've made a few small changes which I hope improve it. In particular, I think it's important to say 'suggestion' (as mentioned in the discussion above) since there seems to be considerable doubt as to whether the (European) Council is entitled to go further than that (many MEPs certainly don't seem to think so). I apologise for failures in format and sourcing - for various reasons, I'm not in a position to devote much time to this (also, my Wiki skills and experience are deficient). If anyone else were able to make suitable improvements it would be great!

I'd like to see some reaction added, now that a month has gone by - comments from respected professional firms might be suitable (or not?) I could suggest the following:

http://www.bardehle.com/fileadmin/contentdocuments/ip_reports/IP_Report_2012_III.pdf (German viewpoint - pro bifurcation)

http://www.bristows.com/?pid=46&level=2&nid=1992

(UK viewpoint - anti bifurcation)

That provides some sort of balance, but they're both pretty gloomy -are there any more optimistic comments that should be used? Nothing further for the present ... Twr57 (talk) 17:42, 5 August 2012 (UTC)

Thanks for the improvements! Personally, I would rather not use the two additional sources you mentioned since newsletters are generally not acceptable as sources, see WP:SELFPUBLISH. --Edcolins (talk) 19:57, 6 August 2012 (UTC)

Thanks for the advice, which I am happy to be guided by.Twr57 (talk) 14:22, 10 August 2012 (UTC)

criticism

Has there not been any? The US system with a single appeal court has received some heavy criticisms, as has the system where the supreme court do not address the issue of patent scope. Will this mimic that system in that aspect? Belorn (talk) 15:36, 11 December 2012 (UTC)

This article looks to bring some points of he criticism that exist, but also provide some links with additional sources for criticism. Belorn (talk) 09:56, 12 December 2012 (UTC)

In the "further reading" section, there is a good reference IMHO. --Edcolins (talk) 20:35, 14 December 2012 (UTC)

Structure

So how do we want to structure this going forward? We've got several closely related topics, and it's not entirely clear to me the best way to do this:

• the unitary EU Patent (created by the enhanced cooperation mechanisms)
• the Unified Patent Court (which will have jurisdiction over more than just the unitary EU patent)
• the Agreement on a Unified Patent Court (the treaty which founds the court above)

Since the UPC will handle more than just the EU Patent, I feel like it's a broader topic and really doesn't fall under the scope of "EU Patent". Thus, I think we should split the content about it to a separate article, and just keep a summary of how the two interact here. The question is, would it be better to have three articles or two? If we went with three, then Agreement on a Unified Patent Court could contain all the details about the negotiations of the agreement, the table of ratification, etc. While Unified Patent Court would be reserved just for the details about the court itself. (This would be similar to the setup for Schengen Agreement and Schengen Area). What do others think? TDL (talk) 02:33, 20 February 2013 (UTC)

In short, good analysis; I agree with you that we need more articles and that it is defendable to have a separate UPC article, we do have articles on all kinds of courts anyway and the subjects are indeed not suitable for a single article. Having a separate article on the treaty is possible, but I would choose -for now?- not to do so as those articles often become list-like (like criatia s accession treaty) and makes us repeating ourselves.--L.tak (talk) 08:14, 20 February 2013 (UTC)

That sounds reasonable, especially until the court actually comes into being. We can always split the Unified Patent Court article at some point in the future if it becomes too bloated. TDL (talk) 13:04, 20 February 2013 (UTC)

I have gone ahead and started Unified Patent Court. Feel free to further improve etc! L.tak (talk) 14:15, 23 February 2013 (UTC)

You beat me too it! Looks like a good start. TDL (talk) 19:40, 23 February 2013 (UTC)

Rename to "Unitary patent"?

"European Union patent" isn't a common name for this. (It's also misleading since this patent won't be valid for the European Union, just 25 of the 28 member states.) The two common names are:

• European patent with unitary effect
• Unitary patent

I suggest moving the page to one of those. Gronky (talk) 02:47, 21 March 2014 (UTC)

You make a good point. Purely anecdotally, I'd say "Unitary patent" is more common. Plus it has the benefit of conciseness. TDL (talk) 03:08, 21 March 2014 (UTC)

Support (rename to "unitary patent"). You seem to be completely right. --Edcolins (talk) 20:38, 21 March 2014 (UTC)

As no one has objected over the past two days, I've gone ahead and made the move. Thanks for the suggestion Gronky. TDL (talk) 19:52, 22 March 2014 (UTC)

3rd paragraph: unitary or European?

I'm explaining this edit I made: [7]

I think it's confusing to talk about "removing the requirement to translate European patents". The European patent still exists and still has those requirements. What's changed is that there's a new, other system. And to say that "Instead, European patents will be accepted in..." is also then off-topic. But I also see that my original text had problems, so I hope this text is clearer.

I wasn't sure about "legally binding". A contract can be "binding", but is it the right word for a title such as a patent? To be safe, I grabbed the wording used in the regulation. Gronky (talk) 17:03, 23 March 2014 (UTC)

Thanks. Isn't the unitary patent a specific type of European patent? If my understanding is correct, this wording "The proposed unitary patent is institutionally related to, but different from the European patent..." is slightly confusing. See [8]: "A unitary patent will be a European patent granted by the EPO..." Perhaps, we should use "classical European patent" as used in [9]. What about "The proposed unitary patent is institutionally related to, but different from the classical European patent..."? --Edcolins (talk) 17:38, 23 March 2014 (UTC)

I'm not completely clear on this myself. I guess the "classical European patent" is useful. I'll have to read some more... Gronky (talk) 18:14, 23 March 2014 (UTC)

The EU regulation creating the unitary patent says: "This Regulation constitutes a special agreement within the meaning of Article 142 of the EPC." According to the A142 of the EPC: "Any group of Contracting States, which has provided by a special agreement that a European patent granted for those States has a unitary character throughout their territories, may provide that a European patent may only be granted jointly in respect of all those States." Based on that, I think it's correct to say that unitary patent is a type of European patent. Basically, the "unitary patent territory" will become a single patent territory that a European patent can be extended to. TDL (talk) 19:30, 23 March 2014 (UTC)

I have used the wording "classical European patent", which seems better. --Edcolins (talk) 19:42, 23 March 2014 (UTC)

Thinking about it, what we have is a "European patent with unitary effect", and a "European patent without unitary effect". "unitary effect" is just a new box you can tick on the application form for a European patent. (Hoping this is correct,) I'll make the meaning of "classical European patent" explicit in the intro. Gronky (talk) 12:47, 24 March 2014 (UTC)

I think a better way of thinking about it is that there are a number of patent territories to which a European patent can be extended. Currently, all of those territories (aside from Switzerland-Leichtenstein) correspond to the states party to the EPC. Once the unitary patent comes into force, all the parties to the unitary patent package will become a single, unified patent territory with common translation requirements. So currently when applying for a European patent, you can tick off Germany, France, Slovakia, Norway, etc. If this goes into force, to get the same protection you will only need to tick off the EU unitary territory and Norway. TDL (talk) 18:10, 24 March 2014 (UTC)

Yes, although it seems unitary effect is exclusively a post-grant thing (as clarified by p8 of the draft procedure - thanks to L.tak), and the unitary patent territory will exist in parallel to the existing territories - it will still be possible to apply for a just-German-and-Ireland patent, for example. Gronky (talk) 14:06, 25 March 2014 (UTC)

I'm not sure that's correct. A142.2 gives the definition of a unitary patent as "may provide that a European patent may only be granted jointly in respect of all those States." I read that to say that it wouldn't be possible to apply for just a German patent. This is supported by the answer to Q1 here. That's consistent with some of the complaints that I've read (namely that in some cases the unitary patent could increase costs, if for example all you want is a German patent.) As for whether the unitary patent is a pre or post grant thing, you could be right (I haven't gone through the document in detail). But it would seem to be a bit strange if it was only post grant. What if you don't want protection in a non-unitary state? TDL (talk) 16:49, 25 March 2014 (UTC)

A unitary patent is all-or-nothing, so you indeed can't get a unitary patent for just Germany-plus-Ireland, but the European patent still exists. I haven't read anything that says it won't be possible to get a Germany-plus-Ireland-only European patent (or a Germany-only national patent in Germany).

I also it surprising that it's only post-grant, but the draft procedure seems clear (top of page "8", the 12th page of the PDF) that unitary effect is something that gets registered by the EPO, on the "formal request of the proprietor of the European patent", and that "Unitary effect shall only be registered if the European patent has been granted". Gronky (talk) 18:04, 25 March 2014 (UTC)

OK, I've done some more reading and I think I understand the situation now. We're confusing the granting of the patent with the validation of the patent. The application form doesn't require one to specify any territorial extent. It says: "All the contracting states party to the EPC at the time of filing of the European patent application are deemed to be designated." So the patent will usually be granted for all EPC states (though A79.3 says "The designation of a Contracting State may be withdrawn at any time up to the grant of the European patent"). However, post-grant it must be validated by each state for which protection is desired. For the unitary patent, it will be validated by the EPO for the entire unitary patent area. The commission site says: "The procedure up to the grant of the patent will be the same as for ('classical') European patents without unitary effect." So it is only the validation that will change, with the added option of having it validated as a unitary patent. The EU regulation specifies that it is possible to obtain a "European patent with unitary effect validated in addition in one or more other Contracting States to the EPC which are not among the participating Member States."

Re-reading A142.2 that I quoted above, I think it's saying that a European patent must be granted jointly to all unitary patent states. (Ie, you can't withdraw the designation of a subset of the unitary patent states.) However, you could still validate the European patent in only one unitary patent state if you so desired. TDL (talk) 19:25, 25 March 2014 (UTC)

it must be granted with the same set of conclusions for all countries involved; and you could still validate in -say- only Germany; but doing that and "requesting unitary effect" (validating for the unitary area") are mutually exclusive. Any unitary patent granted is deemed not to have taken effect as a non-unitary patent; but that wi probably what you meant to say already… L.tak (talk) 21:24, 25 March 2014 (UTC)

This sentence "Instead, applications for unitary patents will be accepted in English, French, or German with no further translation required for validity" is also slightly confusing. Already now, European patent applications can be filed in English, French or German "with no further translation required for [the] validity" of European patent applications. The changes only relate to post-grant translations (and renewal fees). --Edcolins (talk) 17:45, 23 March 2014 (UTC)

European patents can be applied for in EN/FR/DE, and can be granted by the EPO without any need for translation, but they're not valid in the designated states until they've been rubber stamped by the national patent office, and for many countries that required translation into the local language. Gronky (talk) 18:14, 23 March 2014 (UTC)

I agree, but to be slightly more precise: Once granted, European patents are automatically in force in all designated Contracting States (at least for three months). Then, if within three months from grant, no translation is supplied (when required) for a State, the European patent shall be deemed to be void ab initio in that State (Article 65(3) EPC). --Edcolins (talk) 19:42, 23 March 2014 (UTC)

Ok. Gronky (talk) 12:47, 24 March 2014 (UTC)

Why isn't Croatia in?

I'd like to clarify the first note. I know they joined after the agreement, but IIRC the regulations say that non-signatory member states can join at any time. Is Croatia out simply because they haven't had the time yet for the procedures, or do they prefer to be (and stay) out of this? Gronky (talk) 12:47, 24 March 2014 (UTC)

It is because This is the enhanced cooperation mechanism, which requires an explicit opt in, which is done by a European council decision, and that hasnt happened (yet?)... --L.tak (talk) 13:08, 24 March 2014 (UTC)

Yes, but the question was: why hasn't it happened yet? The article currently implies that the only reason for Croatia being outside is that they joined the EU after the signing. I'm wondering if that's true, or if Croatia actually want to stay outside the unitary patent (like Spain and Italy). Do you know Croatia's position on the unitary patent? Gronky (talk) 14:00, 24 March 2014 (UTC)

that i don't know... My guess is that the unitary patent is not their priority at the moment, and that they will take it up with italy once they decide to join (if they do) in a few month... It certainly would avoid another " malta problem" if they waited a bit... --L.tak (talk) 16:54, 24 March 2014 (UTC)

I've looked around but have been unable to find anything discussing their position, but I agree with L.tak's assumptions. Given that the unitary patent doesn't enter into force until after the UPC agreement enters into force, there really isn't any urgency for them to join. I'd expect them to deal with the UPC and unitary patent in parallel. TDL (talk) 18:10, 24 March 2014 (UTC)

Do classical European patents still require national validation if no translation required?

The intro currently says national validation is only needed if further translation is required. Is that correct? Does a European patent in English take effect in the UK and Ireland without any national-level rubber stamping? I suspect that's not correct, so I'm changing the intro, but feel very free to revert if you think I'm wrong. Gronky (talk) 12:58, 24 March 2014 (UTC)

No, it is not. Some countries do not require registration, and the patent will lapse there only if renewal fees are not paid i believe... I se that a bit too much emphasis on the translation thing is laid in our description, and think we should highlight the other changes better though. The reason why i reverted your change btw were because i liked the clear cut text re epatents vs unitary effect... I we see if i can lay something down clarifying, but without giving the suggestion that the unitary patent will change european patent granting etc... --L.tak (talk) 17:00, 24 March 2014 (UTC)

Is there a web page or document that describes the granting procedure for unitary patents? Gronky (talk) 09:25, 25 March 2014 (UTC)

this epo draft is the best implementation plan we have... It is well possible that there will be a box 'all unitary effect states on the initial patent application form, but anyone would be crazy to tick it: selecting over 7 (or 8) of epo s 38 states is just as expensive (or has the same effect) as designating all. Post grant that is of course a whole different story!--L.tak (talk) 10:58, 25 March 2014 (UTC)

How is selecting 8 states as expensive has selecting them all? And how does it have the same effect? Why would someone be crazy to tick the box for 25 states? That's what the EU expects people to do when the unitary patent comes into force, right? So it can't be so crazy (but I don't know the details, and I know very little about costs). Gronky (talk) 18:15, 25 March 2014 (UTC)

Sorry, I am quoting not up to date info. Back until 2009, you designated a number of states, but you only paid for 7 (about 80 euros per state). So if you designated 7 states or 38, your would pay 7x80 euro. The best thing thus was to tick the box "all states", rather than choosing a subgroup. However since 2009, you pay a single flat rate fee and automatically designated all states; so this is not possible anymore… As for costs: in addition to designation fees (once off); you pay a fee each year to EPO until the patent is granted. Only after grant of the patent, you have to pay in all 36 states + the unitary region Switzerland/Liechtenstein (who have a type of unitary patent) each year individually (if you want 38 states); which is both cumbersome and costly. Anyway, the document I cited above makes clear that the formal request for unitary patent will be possible upon the "decision to grant"; so when EPO tells that the patent will be granted (if you pay them -again- a fee); until 1 month after the formal grant; and that they will make this possible in the software… L.tak (talk) 21:18, 25 March 2014 (UTC)

Nationally validating a European patent in a particular designated state means submitting the required translation. In designated states where no translation is required, no "rubber-stamping" by the national patent office is needed. Only renewal fees are to paid nationally (but that's not something I would refer to as "rubber-stamping"). See Grant procedure before the European Patent Office. A European patent in English takes effect in the Albania, France, Germany, Ireland, Liechtenstein, Luxembourg, Monaco, Switzerland, and the United Kingdom (see London Agreement (2000)) without any national-level rubber stamping. --Edcolins (talk) 19:51, 26 March 2014 (UTC)

classical or non-classical

Discussions are running parallel; and our knowledge is advancing; so I am starting a new section. I am making 2 points, which I'd like to separate:

1. The word "classical" is used sometimes to refer to "European patents after grant that are validated in single countries". I personally don't like classical; in view of the fact that Liechtenstein/Switzerland already for years have a unitary/unified system, which renders "classical" a bit weird. I therefore propose to use something like "nationally validated", which is more descriptive.

   (Replying to L.tak) But the current documentation uses the term "classical", so it's not our choice of descriptive term, it's just that we're documenting this thing that exists and is known by that term. We could address your issue by explaining in the intro or in a note that "classical" isn't strictly correct/unambiguous. Gronky (talk) 07:50, 26 March 2014 (UTC)

   it often does indeed; let's keep on using the term then (it was only a wish), but let's be aware of those moments where the word is ambiguous and avoid the situation where people think that the unitary effect is an alternative to european patent, where it is an alternative to a "classical" European patent in the national phase... L.tak (talk) 10:43, 26 March 2014 (UTC)

2. The European patent as we know it, does not change. The application and grant procedure does not change. It is just in the "national" phase, when a region (unitary effect region) will be able to be registered, rather than the individual countries. This is often described as a EP (NL), EP (UK) patent etc, and it will now be possible to have a EP (Unitary) patent… However, the last paragraph of the intro make the -good- point that a "European patent with unitary effect" is something different from a "European patent" (the thing granted by EPO, and nationally validated in 36 countries + 1 (later: 2) unitary regions). It is therefore not the difference between a unitary and a classical (whatever I think of that name) patent. Shall I therefore just remove the word "classical" from the intro there?

L.tak (talk) 21:35, 25 March 2014 (UTC)

I agree that "classical" is misleading (since the EP hasn't changed), but it is used frequently enough by sources that we should at least mention it. I'd support using clearer terminology throughout the article though. My only concern with "nationally validated EP" is that it kind of implies that there are two different types of EP's (nationally validated and unitary validated). If we invert it to "EP validated nationally" it puts more of an emphasis on the fact that the EP is just being utilized differently. And I agree with removing "classical" from the last paragraph of the lead, since as you say it is trying to explain that the EP and the unitary patent are distinct. (Just like the EP and the nationally validate patent are.) TDL (talk) 15:58, 26 March 2014 (UTC)

Another option if we want to stick with "classical" would be the slightly more verbose but clearer "classically utilized EP". TDL (talk) 16:10, 26 March 2014 (UTC)

Why not "non-unitary European patent"? --Edcolins (talk) 20:57, 26 March 2014 (UTC)

Because again that suggests that there are different types of EP that one can apply for, when the distinction (as per the discussion above) is purely with how the EP is used. TDL (talk) 01:00, 27 March 2014 (UTC)

I don't fully understand the problem, but would "European patent without unitary effect" be accurate and correct? Gronky (talk) 12:18, 27 March 2014 (UTC)

Yeah that would work. Or maybe "European patent with national effect". TDL (talk) 16:51, 27 March 2014 (UTC)

I like the latter as well, but it remains a complicated issue indeed, with verbose definitions... "European patent without unitary effect" could both refer to a Turkish European patent (which could coexist with a unitary patent in certain EU countries), as well as a German European patent (which can't). In view of the Turkish example, this formulation (as well) can be a bit misleading… Anyway, I think we have now a good formulation of the last paragraph of the lede that is clear… L.tak (talk) 23:09, 27 March 2014 (UTC)

Switzerland/Liechtenstein

Interestingly, there is no reference to Article 142 EPC ("unitary patent") in the 1978 agreement between Switzerland and Liechtenstein (page 407 of [10]). Rather a reference to Article 149 EPC is made ("joint designation"). --Edcolins (talk) 20:55, 26 March 2014 (UTC)

That is interesting indeed! Do you think that the "the contracting states" in that article refers to the contracting states defined in Article 142? In view of the mention also in 143-148 that is at least my reading of it… L.tak (talk) 13:08, 27 March 2014 (UTC)

Yeah I think you're right. If you read 142.2 it says "Where any group of Contracting States has availed itself of the authorisation given in paragraph 1, the provisions of this Part shall apply." A142-149 make up Part IX. So 149 would only apply if "the contracting states" have provided for a unitary patent in their territory. TDL (talk) 16:58, 27 March 2014 (UTC)

Thanks, L.tak and TDL! I should have read Article 142 EPC and Article 149 EPC more carefully. It seems that "The group of Contracting States" in A149 refers indeed to the group mentioned in A142. Thus, a unitary patent or European patent with unitary effect has existed for more than 30 years: the European patent having a unitary character throughout the territories of Switzerland and Liechtenstein. I therefore propose moving the content of the present article to Unitary patent (European Union), to create Unitary patent (Switzerland and Liechtenstein), and to define in Unitary patent what a unitary patent is, in generic terms, pursuant to the provisions of Part IX of the EPC. --Edcolins (talk) 20:41, 27 March 2014 (UTC)

Well, the fact that it takes us so much time to find it out exactly means that the common meaning of unitary patent is the EU-version…. I would support making those pages, but would prefer different naming. What about Unitary patent (this page, with a "for" statement in the top), Unitary patent (European Patent Convention) (general) and Unitary patent (Switzerland and Liechtenstein)? L.tak (talk) 23:13, 27 March 2014 (UTC)

I agree that the EU-unitary patent is the WP:PRIMARYTOPIC of the term "unitary patent", so if other articles are to be created it should be them that are disambiguated (with appropriate hatnotes of course.) I'm not sure we need three articles though since there probably isn't all that much to say about the Switzerland-Liechtenstein patent. Perhaps the best approach would be to create a WP:SUMMARY article at Unitary patent (European Patent Convention) with an overview of both instances. If enough content develops around the Switzerland-Liechtenstein patent we could always split it out in the future. TDL (talk) 00:12, 28 March 2014 (UTC)

I have just created Unitary patent (Switzerland and Liechtenstein). One could also create an article about the general concept of "unitary patent" under the European Patent Convention (Unitary patent (European Patent Convention)), but this may require some more research (perhaps about the origin of Article 142 EPC, etc.) As a side note, OAPI patents are probably providing truly "unitary patents" valid in all member states of the Bangui Agreement (see Glossary_of_patent_law#Regional patent), but this should be verified. --Edcolins (talk) 22:22, 28 March 2014 (UTC)

Error?

This:

For a unitary patent no translation requirements will be in place, which significantly reduces the cost for protection in the whole area. In a transition period of maximum 12 years however there will be one translation made, either into English if the application is in French or German, or into either French or German if the application was in English.

appears to be incorrect. Any EU language can be used for the translation. See [11], page 38: "This translation will need to be in English if the European patent application was not in English, or any other official language of the EU if the European patent application was prosecuted in English.". --Edcolins (talk) 15:45, 29 March 2014 (UTC)

You're right probably… I didn't explicitly check with the regulation, and thought I remembered… Feel free to correct… L.tak (talk) 16:07, 29 March 2014 (UTC)

Done. --Edcolins (talk) 16:27, 29 March 2014 (UTC)

Isle of Man

I have been long wondering how the situation would be with the Isle of Man, Curacao, Sint Maarten and Caribbean Netherlands. The European Patent Convention is fully applicable to them (see the EPO journal), but they are not part of the EU: directives and regulations seem not to apply (see the european commission website and the Overseas Association Decision). Thus, I thought that the unitary patent would not apply. The UPC Agreement is careful not define the territorial scope for the unitary patent, but only for non-unitary European patents: for those patents the agreement will be applicable to the extent the EPC is applicable... However, in the recent consultation of the UK, I find: "The UPC Agreement, the Unitary Patent Regulation, and the Translation Regulation cover the territory of the United Kingdom but they can be applied to the territory of the Isle of Man if the Isle of Man agrees to it. In Spring 2013, the Council of Ministers of the Isle of Man indicated3 that they want the ratification of the UPC Agreement to include the Isle of Man."

What would that mean? Unilateral application, which means unitary patents are considered valid there (and decisions regarding unitary patents by the UPC will be recognized)? Or complete application of the regulation, which means that if a unitary patent is infringed on the Isle of Man, actions can be brought before the UPC... In the latter case I wonder what the basis is for the extension of EU rules; it certainly doesn't seem to be the basis of protocol 3; but I also not aware of a general possibility to "extend" regulations to formally cover such territories. The analogy with the community design would confirm this reading (see here where it is not part of the EU for this purpose, but that the rights apply.

Anyway, this is a bit premature, but will become relevant to add once the UK ratifies the UPC-agreements and extends it to the isle, and I would like to have your views now already.... L.tak (talk) 10:32, 11 June 2014 (UTC)

By "comple", did you mean "complete"? --Edcolins (talk) 20:05, 13 June 2014 (UTC)

Indeed! corrected.. L.tak (talk) 21:10, 13 June 2014 (UTC)

Dependent territories

It seems that with some of user:Danish Expert's edits, the discussion has become suddenly very relevant. I have reverted, as it is not vital to have the things in at this moment, so we can take the time to get consensus on the facts first.... I once again welcome any comments. L.tak (talk) 20:34, 1 July 2014 (UTC)

I have created a sandbox at Talk:Unitary patent/sandbox where first Danish text is placed, then changed by my suggestion. I have opted for a non-list format (we don't know if other OCTs also may legally decide to apply EU legislation in this way) and removed references to the UPC (as that is not what this article is about). L.tak (talk) 21:30, 1 July 2014 (UTC)

I oppose your second version for two reasons. First, as also reflected by my reply in the debate below, I do not believe any dependent territories of participating EU member states unilaterally can choose to join the "unitary patent"/UPC. For this to happen, the territorial scope for the implemented patent law in the participating EU member state, needs explicitly to mention that the territory of its law has been extended to include dependent territory X, Y or Z (with judical competence granted to the courts of the mother state). So I can not accept your sentence: "but certain dependent territories may decide to apply EU legislation unilaterally [causing the unitary patent to become valid in their territory]". For the second, I think its best to have a list visible in the article for those dependent territories where the unitary patent automatically also will apply, and that this list also should include the names of those "dependent territories of participating EU member states having opted to be a part of EU". The list will not be terrible long (and if it does, it can always be displayed by a 4 column page-split). By adding the subchapter with the list format already now to the article, we will get the attention and help by other editors to "check and add" if/when additional territories will join the unitary patent. This is why I argue to include it now, instead of having the content placed at the more hidden sandbox talkpage. Danish Expert (talk) 07:57, 2 July 2014 (UTC)

We'll come to the format later; I have no problems with a bulleted list; but it will be much easier if we have the conditions straight. My problems are that the unitary patent regulation is a regulation, and that I have not seen any EU-law rule that makes it possible to extend an EU law to dependent territories (with the exception of Gibraltar), without explicitly mentioning it (see the analogy with the community trade mark). I have no problems striking the "unilaterally" part, as long as we make clear that the Isle is in a processes of deciding whether to "apply" the regulations. I think we can say not much about other territories at this point; nor can we say that this is an automatic right of dependent territories; or that it is restricted to dependent territories (what if Switzerland would state they apply the unitary patent regulation? no problem... they don't get income; you can't get sued at teh UPC if in breach, but they may do whatever they want)... L.tak (talk) 08:11, 2 July 2014 (UTC)

No, Switzerland can never become part of the unitary patent (I am certain of that), as they are not part of EU. To become part of the unitary patent, it is not enough to be a EPC member. The EPC member also needs to be either: 1) A EU member participating in the enhanced cooperation for a unitary patent or 2) A dependent territory of a EU member participating in the "enhanced cooperation for a unitary patent". In regards of the formulation, I am not opposed to clarify that Isle of Man is in a process. I also do not know the exact legal argument, how they are making it possible for the regulations to be extended with appliance for those dependent territories having such desires - without being part of EU themselves. I just looked at the Isle of Man as a casestudy, and concluded it was possible based on that. If you question this is not the case for all "dependent territories of EU members participating in the enhanced cooperation for a unitary patent" (whether or not those dependent territories themselves are considered to be EU member state territory in general), then I can also accept we reflect this uncertainty by picking a more careful formulation of the sentence. Danish Expert (talk) 09:43, 2 July 2014 (UTC)

We could state at the beginning that certain Dutch, 1 uk and the French territories have european patents, and the rest has not. And then going on for those 3 countries with EP in their dependent territories on virtually quoting refs on how they implement.... For the UPC we could follow the same approach, but starting with the agreement-article that specifies the scope of European Patents without unitary effect. Would that be an idea? L.tak (talk) 08:11, 2 July 2014 (UTC)

Yes, due to the lack of sources and your expressed uncertainty about the matter, I can accept this idea as a compromise. We both agree, that in order to be in consideration at all for a unitary patent, the dependent territory as step 1 needs be a member of EPC. Step 2, which I also think is logic (and that I hope you can agree with me on), is that the mother state of the dependent territory in consideration for a unitary patent, at least also needs to be participating in the enhanced cooperation for a unitary patent. This mean, that the Spanish dependent territories should not be mentioned by our list. Danish Expert (talk) 09:43, 2 July 2014 (UTC)

In order to apply the unitary patent, it makes not sence not the apply the european patent indeed; altough, I have no sources to very clearly state that (so we may need to make it a bit implicit). For the Spanish and Portuguese territories, I think they have no choice as they are not they are outermost regions, and so apply EU regulations and that is a reason in itself not to mention them (in spain they don't apply because no enhanced cooepratio of course; Portugal does). I see no big reason to mention them (am now already concerned the section may get out of hand), but don't object mentioning them (but in this case: maybe in-line and not in list format?)... L.tak (talk) 10:02, 2 July 2014‎ (UTC)

I have just edited your version 3, keeping and obeying your proposed structure, but writing the full list of territories in play. Personally I think most people will appreciate that the article feature a complete list. Take a look. Hope you like it, despite of the increased length. :-) Danish Expert (talk) 14:28, 2 July 2014 (UTC)

I have changed some things content wise to leave the "part of the unitary patent" a bit more open; and made a suggestion for a Gibraltar note (saying: we have no idea).... Content-wise, it is good to go; Form-wise, it is placing really a lot of emphasis on the theory of dependent territories etc... Can we think of placing the specific countries (Outermost Region) in a note, or in a running text to avoid having three sets of lists? L.tak (talk) 14:41, 2 July 2014 (UTC)

I prefer the list style to make the territories visible, and for the fact that casual readers do not know the OMR term. However, for the purpose of avoiding the triple list, I can accept we change the short third one from "list style" to inline. In regards of Gibraltar, I of course accept your note. Out of curiosity I just looked up the Gibraltar Patent law. They accept EP(UK) to be registered in Gibraltar, but at the moment they are not member of the PCT, so it requires local registry. However, the EPC was also not implemented by "EU law". Now when the unitary patent and UPC will be implemented by EU-regulation, I believe this will also automatically change the status for Gibraltar from the moment of entry into force. Danish Expert (talk) 16:53, 2 July 2014 (UTC)

re Gibraltar... I have seen the registration thing from the law, but it is also saying a lot that both the EPC and UK says "status unclear"; while a commerical firm says any patent from the EU can be a basis for registration in Gibraltar... Which strenghthened me in the idea to keep it as "unclear" as apparently there are many different interpretations (and I have now idea what happens if the UPC is ratified: maybe the ratification is not extended to Gibraltar, so it will be a participating member state wehre the regulation is not applied, as the UPC is not ratified for them; who knows....)... Regarding the 3 lists: the argument is a bit circular: if people are really interested in teh applicability, then they shoudl be interested in the link to the OMR (or already know). As the first list is only tangantially related (it relates to the territory of the EU more than to the unitary patent) I prefer putting that in a note... L.tak (talk) 18:22, 2 July 2014 (UTC)

Question I haven't looked into this in detail, but are we sure that the EPC been extended to all of the OMR? For instance, I don't see any mention of Azores and Madeira at [12]. If it hasn't been extended to them, what are the implications of that? Does the unitary patent regulation really apply to them as listed in the sandbox? TDL (talk) 17:50, 2 July 2014 (UTC)

I am reasonably sure, as they are simply part of Portugal, and I have never heard of a treaty being specifically extended to those regions... The same goes for the other regions; although I can imagine (no idea!) wether IP regulations may not apply on Athos (as many laws seem not to apply there)... L.tak (talk) 18:22, 2 July 2014 (UTC)

I thought it was only VAT and women who were prohibited on the Athos mountain? In regards of the OMR's I am also certain the "unitary patent" will apply (because of being introduced by EU regulations), because otherwise the concerned OMR territories should have negotiated a derogation exception - which we have no stories about. For the six territories being recognized as EU-territory where EU-law apply with a few exceptions, but not being OMR's, I would however be ready to accept we could leave a reasoned cn-tag behind them, to reflect the theoretical possibility that their mother country will decide (as part of their implementation law and ratification) to leave those six territories out of the "unitary patent". Finally, I do not support the suggestion to convert a part of the first list into an OMR-note, as it would only remove the Portuguese and French bullet point while making it more difficult for casual readers to get overview of the situation by the "first catch of the eye". Danish Expert (talk) 16:08, 3 July 2014 (UTC)

Gibraltar: Huston Huston - we got a problem. Or let me rephrase, UK has a problem. I just extended the Gibraltar note quiet a bit, to cover all relevant details. Back in 2005, UK was forced by the European Commission to make sure the "copyright directive" also applied in Gibraltar. I am rather certain UK again will face the threat of a court trial (launched by the Commission), if they do not make sure the "unitary patent regulations" also will apply in Gibraltar. Anyway this is a different story. Just wanted to bump a notice, that I can approve the Gibraltar note as it currently stands. Danish Expert (talk) 09:49, 4 July 2014 (UTC)

.... unless they decide not to extend their ratification of the UPC-agreement to Gibraltar, in which case one could argue that the regulations never apply to Gibraltar (and that Gibraltar is not covered by the unitary patent). Indeed the threat is there, but the outcome is uncertain. On a wikipedia related note: I think you got a bit carried away with this note; some seems original research (is it truly a requirment to ratify PCT to join the unitary patent); and some seems (thus?) to be a bit out of scope. I would leave it at "EPC is not extended to Gibraltar, and UK lists its status as not applicable, (and in its consultation the UK speaks to extening solely to Isle of Man and to none of its other dependent territories)." The rest could certainly find its way to other wikipedia (e.g. may be copyright directive=Infosoc directive may need this Gibraltar info)

Well, perhaps the note did become too detailed, but in my opinion not by a big margin. The note text will anyway not be visible in the articles chapter, unless people click on the note link. Because of that, I thought it was better to mention all relevant details rather than limit ourselves to the overall point. Based on that, the only part I am willing to accept being chop off (if you insist), would be the sentence explaining that "all Gibraltar citizens have been granted an absolute right by the UK constitution to become British citizens". Then you also ask if we can conclude a territory also need to be covered by the Paris Convention + PCT + EPC in order for the "unitary patent" to apply? My answer is yes. The "unitary patent" directly make use and refer to EPC provisions, so that one is a certainty. As mentioned by my hidden note in the note, the contracting state with responsibility for foreign relations in one of its dependent territories then have the option to expand their EPC to cover this territory at any time by submitting such a declaring note, which is regulated by EPC Article 168. However, the EPC Part X also notes that in order to become an EPC-member you need first to be a PCT-member. Finally PCT Article 62 clearly states that you need first to be a member of the Paris Convention (International Union for the Protection of Industrial Property), before being applicable to become part of the PCT. So they are all three intertwined. If you look at the situation for Isle of Man, they are also currently covered by both Paris Convention + PCT + EPC, and (as you already know) asked to become part of both the UPC and Unitary Patent. If the territories do not have their own jurisdiction they will of course per definition be covered by the mother states membership of the Paris Convention + PCT + EPC; and the same apply for those territories with status of being Outermost Regions. Danish Expert (talk) 11:55, 4 July 2014 (UTC)

Despite this all, for several dependencies, EP(UK) patents can be validated in British Virgin Islands, possibly Gibraltar etc. Thus they are not covered by the EPC, but it has a strong bearing on them. I have no idea if along that line, one could extend the unitary effect not to Gibraltar (and that's why I consider it Original Research and not sufficiently relevant for here). The application part is not fully relevant, and also may miss the mark (note the Aruba note: they may not file PCT via EPO, because their territory is not a PCT territory; despite the fact that the Dutch nationality is an undividable thing which holds equally to Arubans)... L.tak (talk) 12:08, 4 July 2014 (UTC)

One can not automatically extend the "unitary effect" to those territories who are not part of the EPC+"unitary patent regulations". The line you are looking at, is that the EP(UK) patents (granted and validated by a UK mainland patent office) can be extended to many of the overseas British territories, but this will involve a separate registration procedure at the local patent office. So it is a separate procedure involving a separate fee and registry. In Gibraltar they currently only register the EP(UK) if you specifically apply and ask for this within a certain time limit after your EP(UK) has been granted. So it is not the same as "unitary effect". Of course if nothing else happens, they could always continue this procedure for "EP with unitary effects". But it would still demand a separate "national" procedure and register. This of course conflicts with the "unitary patent regulation", so if Gibraltar is covered by that, which I think is pretty clear from a legal stand point, they need to join both the Paris Convention + PCT + EPC + Unitary patent. On the other hand, like for Italy, they will never be forced to join the UPC - that part is a voluntary option (because of being an intergovernmental agreement not being integrated into EU-law). Finally, about the application part, the point with the "unitary patent" is that EPO controls and handles this register, so if Gibraltar join the "unitary patent" the application shall be submitted to the EPO office. This is in contrast to how it currently works today at Gibraltar, which is why I thought it was relevant to note (at least temporarily). We should not speak about Aruba, as they as an OCT without EU-membership, never will become a territory to join the "unitary patent". Danish Expert (talk) 12:39, 4 July 2014 (UTC)

I agree lots of things have to change for Gibraltar, but again, I don't think it is without doubt what would happen in Gibraltar. It is for me by no means certain they may not in their national law (or in UK national law, or in EU law; it all is national law common to several EPC states) just declare the unitary patent applicable. It's not the nicest way to do it, but who knows? For the second point: it is the EPO which applies EU law by giving the unitary effect while applying the unitary patent regulation and its own rules; it is not the case the the EPO is in charge of the unitary effect; so I have no idea what application shall be sent to the EPO office if Gibraltar does something. The application for unitary effect can be done by the proprietor of the patent; and thus can be done by American, English, or Gibraltarian (legal) persons as it is not a patent application, but "just" a request for unitary effect... (The fact that a Gibraltar company/person can not ask for a European patent; is bad luck for the Gibraltarians, but it has not effect on the unitary effect, a British Citizen nationality will not change it (as the EPO uses not formal nationality; if it did so, then also Arubans (=Dutch nationals) could request a European Patent).. L.tak (talk) 13:24, 4 July 2014 (UTC)

Yes, I am aware of that. My point in the note was not contrary to the point in your reply. My noteline never claimed that Gibraltarians/Americans would be prohibited to seek extended "unitary effect" on their existing "EP patent" registered at any of the local EPO offices in one of the EPC participating member states. Instead my noteline focused on: what needs to be done for the "unitary effect" of any granted EP patent also to be automatically valid in the Gibraltar territory, and how becoming an automatic part of the "unitary effect" territory also automatically will change the patent granting structures in Gibraltar. I disagree with you, that Gibraltar has the option to ignore implementing the entire part of the "unitary patent regulations", and just (by inserting a single paragraph in their national law) declare that all future "EP patents with unitary effects" automatically shall be valid in their territory. As I understand the situation, they need to do a full implementation of the European regulations, and can not just partly adopt the "unitary effect". We all know, that whenever we have EU law-conflicts, then the EU-law stands above the national/territorial law. So now the Gibraltar national law has to change. They need to do a full implementation of the "unitary patent regulations", which - as I understand - will require they join the Paris Convention + PCT + EPC (via an extension submitted by UK) and adjust their national law to respect the provisions of the "unitary patent regulations". Danish Expert (talk) 09:58, 6 July 2014 (UTC)

You may very well be right regarding the requirement for Gibraltar; but we have no idea how it will play out. We have discussed several options:

• The European Commission will via CJEU require adoption (and thus ratification of all the treaties)
• The UK will not extend the UPC Agreement to Gibraltar, which may (!) mean that the Enhanced Cooperation will not enter into force with respect to them (which may be challenged with the CJEU; but one could also think of a challenge by Spain of the european Council's registration of the deposit of the instrument of ratification of the UK not extended to Gibraltar)
• A court challenge will make the CJEU decide that the patent regulations apply to the UK, that for the purposes of the EU, the UK includes Gibraltar, and that thus the unitary patent covers Gibraltar...
• A court challenge will make the CJEU decide that the unitary patent is for European Patents to which unitary effect is attributed. As Gibraltar has no EPs, it can not attribute unitary effect, the regulation applies to Gibraltar, but in the absence of European Patents will have no material effect...

As we don't know, let's stick to the basic facts (and I am coming now to our common paragraph)

1. I have changed the note to indicate that Paris and PCT are needed for EPC extension to make that point more explicit, as I concur that has direct relevance....
2. I still don't see the merit of explaining that Gibraltarians can not file at EPC (that is an implication of the point made above, but not of direct relevance here; we don't need to mention all implications); and the fact that they may be able to do so be virtue of their British Citizenship is likewise not that relevant (and something I dispute based on the Aruba analogy).
3. I have purposely left open wether the regulations apply to Busingen, Gibraltar and Atos etc by stating the general rule (they are part of the EU and EU regulations apply and stating that they are with participating member states.... That avoids us having to go into the specifics....

I hope this is an approach you can live with! Ideas as always welcome of course... L.tak (talk) 10:33, 6 July 2014 (UTC)

Okay, I accept your argued opinion for the removal of the marked lines in the Gibraltar note. I have now removed them from the note. But added the following new extra line, which I think is important also to include:

• However, any granted patent in UK can currently be extended to cover the Gibraltar territory, provided the patent holder also apply for registration within three years of its grant to the Gibraltarian registry.

Reason why I think this extra line is relevant to include, is because the line ahead of it refer to "status unkown". The extra line helps to clarify which consequences the "status unknown" mean in real life, which is why I think its relevant to include. After having slightly reformulated the first line of the chapter (accepting your point that we should replace "automatically valid" with a reasoned "expected to be valid"), I can now approve the entire chapter as a whole. Can you approve that we now copy the chapter to the article, in its current version? Danish Expert (talk) 10:54, 7 July 2014 (UTC)

He Danish, I agree the extra line is worth it; although I would remove the word "however"... The paragraph is good to go on the page as far as I am concerned... To be honest, I am still a bit unhappy about the formulation of the first line (not all on the list are IMO dependent territories; some simply belong to the "mainland", but it is hard to find a good definition; furthermore, the "is likely to" formulation is a magnet for a template... Lastly, there is a good case to make to remove Busingen and Atos as they form very fully part of the country), but reckon that it would be best to introduce and see how it evolves without trying to get it perfect between the two of us... Looks like we have an interesting asset! L.tak (talk) 22:25, 7 July 2014 (UTC)

Just removed "however" and striked words. To solve the content-conflict caused by the term "dependent territories", I also now replaced it by the term "special territories". I will now copy the agreed version into the article. Danish Expert (talk) 09:34, 8 July 2014 (UTC)

L.tak's very original research

What if: L.tak (talk) 21:46, 1 July 2014 (UTC)

• Isle of Man unilaterally applies the unitary patent regulation (so: no true unitary patents within EU law, just European patents kept valid in the Isle of man)
• Isle of man European patents (not european patents with unitary effect) is part of the UPC
• UPC has jurisdiction with regards to EP's valid on isle of man
• What is a valid EP and what legislation is applicable to it, is a matter of national law
• the "Ilse of Man EP with Unitary effect" is considered a national implementation of the European Patent on the Isle (as it can not be a unitary effect according to the EU regulations)...
• And thus the UPC has jurisdiction....

I do not completely buy the above string of arguments/reasoning. My own understanding of this issue is, that Isle of Man can become a true part of both the "unitary patent" and "UPC", provided that they just explicit are part of the implemented UK patent law with all provisions (including those ensuring membership of EPC) extended to apply also for Isle of Man. The domestic Isle of Man law of course then subsequently also needs to be compliant with the "UK patent law", but this is just to avoid creating any legal conflicts, because their legal position and rights will be fully assured internationally solely by the "UK patent law" (because this law explicitly decided United Kingdom is extended to include Isle of Man for this matter). Danish Expert (talk) 06:22, 2 July 2014 (UTC)

I agree that this is basically original research, so let's just leave it at that... The only question we need to address are above; and not my interpretation of how this might work out in the end... The point remains however that I do not believe that the Isle can be part of the EU for the purpose of IP; and that thus they may apply, but there is not indication they may truly become part of it.. L.tak (talk) 09:45, 2 July 2014 (UTC)

Unitary effect wont extend to Poland

The explanatory document recently published by the Preparatory Committee and Selective Committee, has clarified the geographical extension of the Unitary patent (see the copied cite below):

• The geographical extension of the unitary patent protection will eventually embrace all the EU Member States that are contracting parties to the EPC and have joined the enhanced cooperation in the area of the creation of unitary patent protection – the participating Member States. The unitary effect of a European patent will cover the territories of those Contracting Member States that have ratified the UPC Agreement at the date of the registration of the unitary effect of the individual patent. The geographical extension of the unitary effect for an individual European patent will remain fixed and will not be extended to those Contracting Member States that ratify the Agreement after the registration. However once all the Contracting Member States have ratified the UPC Agreement, European patents registered thereafter will enjoy unitary effect in all participating Member States.

This mean that the unitary patent wont have effect in Poland, before they have both signed and ratified the UPC Agreement! On top of that, those unitary patents registered ahead of Poland's later UPC ratification, will not automatically get their unitary effect extended to cover Poland. For this reason, I now propose we create and dedicate a special chapter to keep track on, when the various territories participating in the enhanced co-operation become part of the unitary effect. I also propose that we both in lead text and the explanatory note for the colored map, now clarify that the "unitary patent regulation" wont apply for the participating member states in the enhanced co-operation until the time when they have both signed and ratified the UPC agreement. Danish Expert (talk) 11:18, 17 July 2014 (UTC)

This is nothing new of course and I thought we had it in the article [it is the reason why I think that there is a possible legitimate legal reason the unitary patent may never apply to Gibraltar, as long as the UPC agreement is not extended to it]... I see no point in making a dedicated section though (maybe after entry into force make table/chart with a date from when the unitary effect extends to which country)... If we write down that the unitary patent will have effect "from the moment the UPC enters into force for those contract states that ratified it", we are good to go. We could make however a note regarding the peculiarity that in order to qualify for registering unitary effect, one needs to have applied for the European patent including all participating member states (including Poland, see the EPO draft rules of procedure). L.tak (talk) 12:55, 17 July 2014 (UTC)

• I made a few edits to put it in the main section regarding this; and did find it already mostly present in a note "States will only participate in the unitary patent if they ratify the UPC Agreement" on the main page. Would that be enough?
• Thinking again; Poland is no more a special case then -let' say- Czech Republic; as long as they don't ratify/accede; it won't extend... signing does not change that status... L.tak (talk) 13:05, 17 July 2014 (UTC)

Agreed that signing doesn't change anything so Poland isn't special. In fact, I'm not even sure that Poland could sign the agreement any longer, they'd likely have to accede. And I think a table showing where the unitary patent was applicable at a given time would be useful.

I've restructured the map legend, does this help address your point DE? TDL (talk) 17:42, 17 July 2014 (UTC)

It did give a problem for me, as also for UK and DE it will apply by definition after entry into force fo the agreement, so separating these states out doesn't really help... I agree with the other changes (and indeed a table; if not repeating the unified patent court table, would at a certain moment be useful)... L.tak (talk) 18:11, 17 July 2014 (UTC)

Yes, the current version with the parenthesis in the map legend, is OK for now. On the long run (meaning once all signatories have ratified), I would however prefer that the entire white box only feature one blue color for "EU Member States where the unitary patent apply", with potential future green/lightred states being represented by the current red color for "EU Member States not participating" - which then perhaps also could be reformulated to "EU Member States where the unitary patent does not apply". In that way the map could be simplified only to show 3 colors (blue+red+purple), without making direct quote of the UPC - and without making note whether or not Italy ratified the UPC. Despite being in favor to simplify the map, I can accept we keep the current format for now, as it also help to display how far away in the process the member states are to become part of the unitary patent. In regards of the "entry into force" dates, my thought were exactly the same as posted by you and TDL, that we can create a table to display this when the UPC overall enters into force for the first group of member states. With the few extra clarifications we now have added to the article, I am perfectly satisfied for now. Thanks. Danish Expert (talk) 20:20, 17 July 2014 (UTC)

After a second read of the lead text this morning, I found a need also slightly to extend the 2nd lead paragraph with two lines, in order to clarify the situation about when and to whom the unitary patent will apply. Indeed note 1 already briefly touched on the subject, but I believe casual readers not familiar with the subject will need also to read the two new extra clarification lines explicit in inline text, to get a more clear understanding when and to whom the unitary patent will apply. Danish Expert (talk) 06:49, 18 July 2014 (UTC)

I agree that the map is a bit busy for the purposes of the article. I created a new one which focuses on status with regards to the unitary patent rather than both the unitary patent and UPC, reducing the number of necessary colours. Does this help? TDL (talk) 06:58, 18 July 2014 (UTC)

I have to admit, that I prefer your second map over the previous one. The decreased informational value by having fewer categories is only small, as curious readers can always visit the UPC article and UPC map to gain further information about the UPC signatory status. With the simplification, the map is faster and more easy for casual readers to understand. So I prefer we continue with your second map, if L.tak does not object. Danish Expert (talk) 07:47, 18 July 2014 (UTC)

No objections regarding the map... This is indeed a much needed simplification and focusses specifically on the things relevant for the unitary patent.... I do (as you have noticed ;-)) have problems extending the lede any further with details regarding ratification of the UPC Agreement... There is a point where even a casual reader should click to the UPC article or scroll down if they are truly interested, and I am wary of having much ratfication politics (will Poland accede, are there states that signed but don't intend to ratify anymore, will Croatia(/Italy), which is now a special member of the UPC prep com go for enhanced cooperation) in the lede.... L.tak (talk) 08:27, 18 July 2014 (UTC)

Italy to join the unitary patent in second half of 2014 ?

I just added a rather long note in the article, going into details about a resolution passed on 16 July by the Italian Chamber of Deputies, which appear to be the last parliamentary decision needed for the Italian government now to join the "enhanced cooperation for a unitary patent", during the second half of 2014. The length of the note is of course way too long, but currently I believe its better to display a 100% accurate cited translation of the resolution text, rather than jumping to some conclusions according to our own interpretation of the text (because I have no expert knowledge about the Italian parliamentarian process to do such thing). Therefore my suggestion is, that we wait to cook down the "Italian paragraph", until we have another confirming/interpretational source explaining the next step in the timeline for Italy to join the "enhanced cooperation for a unitary patent". I will appreciate if some of you can help me Google search for such an extra source, during the next couple of months. Best regards, Danish Expert (talk) 07:18, 22 July 2014 (UTC)

After taking a closer look on the story, I just found out the resolution has not yet been passed by the Italian Chamber of deputies, but that it was just signed by 10 members of the Five Star Movement and submitted to Commissione X on 16 July, and has the procedural status in progress. So perhaps it will never be passed by the Chamber of Deputies, and perhaps the government parties will soon submit their own "unitary patent" resolution? Because of all this uncertainty, I will now replace my edit with a single short line just stating that M5S has submitted a resolution proposal for Italy to join the unitary patent in July 2014 (followed by a note with the exact text). Danish Expert (talk) 07:41, 22 July 2014 (UTC)

Good, thanks for that addition; always good to keep a close eye on this. The paragraph seems to be about the right size (IMO a bit too much, but I know for you maybe a bit to little ;-)) for a non-participant. Should we need more info (e.g. if resolutions are passed; or if a formal request is made to the European Commission), then we still have the possibility to condense the present info (removing the name of the minister etc, just saying that in the first half of 2014, both houses and the government stated they were favour of joining)... L.tak (talk) 16:38, 22 July 2014 (UTC)

Perhaps I'm missing something, but where exactly does the resolution call for Italy to join the unitary patent? All I see is vague statements like "remove the obstacles in the field of protection of intellectual property". I think you are reading too much into the resolution that isn't actually said. TDL (talk)

Indeed the support is kind of vague, and for this reason I also attached the note outlining what exactly the government would be committed to if the resolution sometime in the future get passed by a majority, while only using the phrase "indicating support". The resolution text in its middle described the "unitary patent" as: an opportunity for Italy to reduce the patent application costs for Italian business. Further down in the commitment section the resolution commits the government to reduce the patent application costs for Italian business, but without outlining how. Together I think this is close enough to "indicate support for the unitary patent", or at least provide enough support for the Italian government to join the "enhanced corporation for a unitary patent". As I recall, most governments did not even have votes in their parliament whether or not to join the "enhanced corporation for a unitary patent". They just joined, and only planned to conduct a voting process for the entry into force deciding "UPC agreement". This is why I believe a resolution indicating vague parliamentary support for joining the "unitary patent" would be good enough for the government to take the next step in that direction - if passed. But again, the story is open-ended because we do not know if the resolution will pass, or if the government will submit another resolution proposal. Plus my line in the article for this reason, also refrain to speculate what "indicating support" will mean to the next steps in the Italian process. The line just loosely states that M5S has "indicated support", and in example did not say that M5S expressed unconditional support. However, you are welcome to reformulate the line if you feel it should be better reflected what "indicated support" means. Danish Expert (talk) 18:54, 22 July 2014 (UTC)

OK I've reworded a bit to more closely follow what the resolution has said. TDL (talk) 19:31, 22 July 2014 (UTC)

Can old EPs be converted to unitary patents ?

In our Wikipedia article we have now perfect info explaining that its possible to ask for "unitary effect" to be enabled on new EPs, if asked for within 1 month after issuance. Recently I have been reading multiple articles assuming that it will also be possible to convert older previously issued ordinary European Patents (i.e. EPs issued in 2007) to "unitary patents" within a certain deadline after the "unitary patent" becomes available for the territory to which the previously issued ordinary EP apply. However, after a first brief look into this issue, I was not able to find confirming info about this extra option, neither in our Wikipedia article nor in the FAQ-list for the unitary patent at the EPO website. Do any of you know if such thing will become possible? As the answer to my question is either confused/hidden to most people, I propose we add the clarifying answer (no matter if its yes/no) into the article. Danish Expert (talk) 08:04, 23 July 2014 (UTC)

Well, article 6(1) of the (now not draft anymore) draft rules front he Select committee and article 9g of the unitary patent regulation are perfectly clear, although in colloquial terms patent and patent application are indeed often confused. I have been reading a lot about European patents applied for before 2007 in relation to the Malta problem, but never for patents granted after that date (except for application of the Unified patent court).... L.tak (talk) 08:53, 23 July 2014 (UTC)

Btw, we write so in the second line of the article, and in the paragraph relating to territorial scope; and maybe at some other places... L.tak (talk) 08:58, 23 July 2014 (UTC)

Well both 6(1) and 9g does not say anything about whether or not the EPO will offer special introduction rules, so that pre-existing old EPs can be converted to Unitary patents. The two Wikipedia article spots you referred to, also only deal with how the rules are for newly issued EPs. The point which made me wonder about this story, was exactly the so-called "Malta problem". Why do these "Malta problem" articles claim that all EPs issued after 2007 can be converted without any problem to unitary patents, if you now tell me this is not the case? If you have any explanation for this, please tell me how this exactly should be understood. Should I understand your reply in this way, that all patent owners of old EPs always will be entitled to re-apply for a new EP where they can apply for the unitary effect within 1 month from the renewed patent grant? Or will they only get this opportunity when their existing EPs expire and should be renewed; and is the "Malta problem" then only related to this situation where expiring patents shall be renewed? Or are the "Malta problem" articles simply put just direct wrong in their assumption, that old EPs can be converted into "unitary patents"? Danish Expert (talk) 21:59, 23 July 2014 (UTC)

I think this is solved in the article now, but let’s me answer just to make sure: L.tak (talk) 07:02, 25 July 2014 (UTC)

• I agree nothing is said about special introduction rules;l but then, I fail to see any legal basis for them to do so; so I think we should assume there aren’t going to be any…
• The point of the Malta problem is this: It takes years after ‘’application’’ of a patent to get it granted. Unitary effect is attributed to European patents (which may be applied for years ago) upon grant, for European patents which are granted after entry into force of the UPC Agreement, if they have the same set of claims, and if they have designated those 25 countries upon application of the European patent. If a patent is filed on –say- 1 Jan 2007, then Malta could not be designated, thus the patent will be granted not with respect to Malta; and thus the “25 countries criterion” is not met… In other words: the Malta problem seems very real (and it will possibly become a Croatia-problem, should Croatia join, shifting the date to 1 Jan 2008); especially taking into account that there are certain patents that are still in the evaluation procedure after 20 years (!).
• The re-applying suggestion is not what I meant: you cannot re-apply for a European patent once you have done so (a European patent that you re-apply for would be refused as it fails the novelty-criteria, because an olser application (the previous one) has already disclosed the invention); but upon grant of the European patent, you can apply to attributed unitary effect to your newly granted European patent (this type of reasoning is one of the reasons why the term unitary patent is so much more confusing than the term European patent with unitary effect)
• The same goes for renewing: it is not possible, although the lifetime of certain pharma-patents can be extended once through a Supplementary Protection Certificate.

Thanks for clarifying the matter. I was not aware that a significant number of patent grants were still pending more than 8 years after the patent application was filed. This explains. All this said, I think we shall be careful not to explain how the "Malta problem" will affect patent applications for unitary effect in Note 9, because according to the Blog Lavoix (follow this link-->[13]) this "Malta problem" issue is still up for legal interpretation, and a matter for the Select Committee or the UPC to clarify upon. The paragraph regulating the matter could also be interpreted in an optimistic way, so that in order to be offered the unitary effect opportunity, the patent applications filed before March 2007 just needs to designate 24 countries (all except Malta) and patent applications filed after 1 March 2007 needs to designate all 25. I propose we reformulate note 9 to reflect that we do not know yet how this "Malta problem" will affect the old patent applications. Danish Expert (talk) 04:20, 30 July 2014 (UTC)

To address my stated concern above, I have just reformulated note 9 into a new extended version. I can approve Note 9 as it is written now, and think we should refrain from listing the 3 possible interpretations of what the legal consequences of the "Malta problem" might be for the old patent applications. Danish Expert (talk) 06:57, 30 July 2014 (UTC)

I have searched for months for a reliable source (i.e. not a patent company) source that explains the Malta problem (or even calls it the Malta problem), but didn't find any; so that's why I think we shouldn't add it like that. The way I set up the sentence is deliberately ambiguous: I say the 25 countries are needed (which is literally [they really use the number 25!] sourced in the explanatory text of the draft rules); and I say the number drops to 24 before 2007; without explaining the legal effect of that. I think stating anything more gets us into original research and term coining... Btw, Lavoix in their posts evaluates the position shown in many blogs about 1 year earlier, when it was still unclear if maybe only designation for the 13 initialial UPC states might have sufficed in the beginning. L.tak (talk) 07:49, 30 July 2014 (UTC)

Based on your reply I can accept the removal of the last line: This "Malta problem" may potentially alter the unitary effect designation requirement for patent applications older than 1 March 2007, or in worst case mean that unitary effect can not be granted to any pending patent applications filed prior of 1 March 2007. In regards of my other added clarifications in the note, I however insist they have value and should stay. The length of the note is not a problem. Its better when its a bit longer and then provide the reader with a fully understandable explanation. The note in its previous 29 July version left the reader with several misundertandings - i.e. that you for new European patent applications wont be allowed to withdraw designations and that the "April 2009" rule we are talking about only automatically designates the 25 participating states - when it fact it automatically designates all 38 EPC states. This is why I insist those additional clarifications are kept in the note, while I accept the removal of the strained line due to our lack of a reliable source. Danish Expert (talk) 09:20, 30 July 2014 (UTC)

No problem indeed to remove the "25" word; I didn't think it was technically wrong (the 25 are automatically designated [as part of the 38, which is not relevant in this context]), but no problem to add. Good also to state that the designation can be removed (but shortened details on fees etc, as those should be in the EP). L.tak (talk) 12:37, 30 July 2014 (UTC)

By the way, this sentence (in Note 9):

• Applications made before Malta became a party to the European Patent Convention on 1 March 2007 should have Malta as an extension state.

cannot be true. Malta has never been an extension state prior to becoming a member state of the EPC! See here. --Edcolins (talk) 19:48, 24 July 2014 (UTC)

Apologies, you are right... rephrased a bit... L.tak (talk) 20:34, 24 July 2014 (UTC)

Thanks. No problem. --Edcolins (talk) 07:20, 26 July 2014 (UTC)