Saturday, 6 July 2013

So how will it work?

While looking over the background to the unitary patent, and idly wondering what rules the EPO will introduce to manage it, I came across the following little conundrum. The ability of the EPO to act in respect of "special agreements" is governed by Part IX of the EPC.

Article 142(1) of Part IX states:-

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.

Article 142(2) of Part IX states:-

Where any group of Contracting States has availed itself of the authorization given in paragraph 1, the provisions of this Part shall apply.

As the Contracting States to the unitary patent have not provided that a European patent may only be granted jointly in respect of those states, they have not availed themselves of the authorisation of paragraph 1, and so it appears Part IX does not apply. As Part IX governs the EPOs role in such special agreements this is a problem.

Accordingly, can the EPO do anything in respect of the unitary patent? It seems the EPC says no, but the regulation is ordering the contracting states to tell the EPO to get on and administer the system.  

All views are welcome.

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