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The single European patent will enable a single patent registration application to be Europe-wide. It has been claimed that this will reduce the costs (it has been mooted that this reduction could be as much as 80%), enabling SMEs to access IP rights and protection whilst improving competitiveness.

In addition, dispute resolution will be a single action across member states, rather than a collection of individual actions. For example, an injunction secured in one member state will apply Europe-wide.

However, there are concerns over the single European patent, including uncertainty over the practical application and legal framework, with the cost of renewal fees still to be decided.

ISSUES OF BIFURCATION

A significant concern regards bifurcation. Some member states, such as the UK, consolidate patent validity and infringement into one action. However, other member states, such as Germany, hear each action separately; this is bifurcation. Divisions of the Unitary Patent Court can decide, at their discretion, whether to bifurcate which raises concerns over forum shopping.

Furthermore, a vital consideration is that the agreement still needs to be ratified.

HOW LITIGATION FUNDING CAN SOLVE THE SAME PROBLEM

Whilst these issues are ironed out and clarified, litigation funding and ATE insurance can break down the cost barriers faced by SMEs seeking to gain access to IP rights. Third party funding and litigation insurance can be used to launch a Europe-wide anti-infringement campaign, acting as both a deterrent to potential infringers and a possible source of revenue for the right holder.

Regardless of the mixed opinions, with negotiations having spanned over 40 years, it certainly remains that the recent drive to progress the introduction of the European Patent is a step in the right direction.

As Michael Barnier, European Commissioner for the Internal Market and Services, said in his speech at a conference on the European Unitary Patent on 18th February 2013:

“Please do not lose momentum. We are close to achieving our goal but we are not there yet… If we want European companies to take the investment decisions today that will create the innovation of tomorrow, we must have the courage of our convictions. We do not have a moment to lose.”

Speak to one of our litigation funding and insurance brokers to find out more about the IP litigation funding options available.