Home » Patents » The unitary patent, an opt-out and a referral to the European Court of Human Rights

The unitary patent, an opt-out and a referral to the European Court of Human Rights

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EU flagCould the proposed unitary patent system result in a referral to the European Court of Human Rights? Bear with me for a second while we fire up the flux capacitor and travel back in time.

It’s now 26 June 2007. Rihanna and Jay-Z are riding high in the charts with Umbrella and it’s a Tuesday. One of your clients comes to discuss the filing of their new patent application in Europe. After explaining the European patent process to your client and lamenting the fact that there’s no way of getting a single patent that covers Europe in some sort of unitary sense, your client instructs you to file a new EP patent application. Being the hyper-efficient patent attorney that you are you get the case on file later that day and settle back to a few months of discussion with the Examiner before the inevitable grant.

Time to jump back in the Delorean and fast forward 9 (!) years.

It’s now  27 June 2016 (a Monday). The unitary patent system has only just come into force after the UK narrowly decided to stay in the EU following its “in-out” referendum and into your Inbox plops (finally) a Rule 71(3) Communication from the EPO. Your client’s patent filing from 2007 is now primed to grant after a longer than expected prosecution history.

Your client is interested to hear the option of a European patent with unitary effect but decides that the renewal fees are just way too high (“Maybe if the fees had been announced before last week”, he says, “we could have made some financial provision for them in the long term budgets”). He’s also not keen to submit himself to the jurisdiction of the new unified patent court (“Can we just stick with the old style European patent validation?” he enquires).

You assure your client that for a transitional period at least it is certainly possible to “opt-out” from the exclusive competence of the unified patent court. However, there’s a small issue to consider – the “opt-out” fee. You inform your cilent that it’ll cost XXXX Euros to opt-out and which point he drops his own four letter word into the conversation, “XXXX me! I didn’t sign up for this,” he says. “This is an infringement of my rights. I never agreed to give up the right to use the UK courts. I won’t pay. In fact,” he smiles “this must be a breach of my human rights under the European Convention on Human Rights. Let’s take the EPO/EU Commission/UK Government to the ECHR”.

Is this a flight of fancy or a real possibility? I hadn’t ever considered such a scenario until a comment was made at the LES seminar on 13 June (see my speaking notes here). So, is this possible? Likely? I’ll be interested to hear your thoughts.

Mark Richardson 26 June 2013

1 Comment

  1. Meldrew says:

    I don’t think the ECHR gives you the right to choose which court will hear you: just that a court will hear you.

    If a person held a coat of arms and the Court of Chivalry was abolished, should that person be up in arms for contravention of his human rights [which were not recognised when his ancestor got the coat of arms for butchering the King’s enemies]?

    As I don’t believe in human “rights”, just in decent behaviour, and as I don’t have a coat of arms or a patent to my name, this comment is more than usually disinterested,

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