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EU Patent Could Transform Patent Litigation

Dec 27, 2011

The EU patent moved one step closer to becoming a reality last Tuesday, after a deal was struck by European Parliament members and the European Council. We’ve discussed the long, hard slog towards an EU patent here and here, focusing on how this would transform the patent prosecution process in Europe, and substantially lower patent translation costs related to validation. But it would also have a big impact on patent litigation, and affect patent translation costs there as well.

How so? An agreement on an EU patent will include establishing a unified patent court for Europe. Currently, patent litigation in Europe is fragmented since each European country has its own patent laws and national courts who oversee them. A patent owner needs to go to court in multiple countries to enforce IP rights throughout Europe.  A unified patent court would change all that. A patent owner would go to the UPC to litigate both “classic” European patents and the new unitary EU patent. The court would have exclusive jurisdiction, and become a one-stop-shop for litigating patents across Europe.  What does this mean for legal translation costs related to patent litigation? Here the picture is less clear. On one hand, the patent owner in theory will no longer need to translate legal documents related to the patent infringement case into the official language of each country where his patent rights are being infringed. One translation into French, German, or English would be sufficient. On the other hand, it appears that the new policy will still require additional translations, because the suspected infringer will be presumed innocent if he has not been able to read the full text of the patent in the official language of the country where he resides. And indeed, if this is an acceptable defense for patent infringement at the UPC, much of the patent translation savings related to prosecution will also be negated. What patent owner would take the risk of not translating his patent into the official language of every single European country where he seeks IP protection?

Many of these issues still need to be ironed out, and effective mechanism created for dealing with them. We will have more to say about the EU patent as new develops.

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