An IP game changer
For several decades, the member states of the European Union (EU) have been negotiating the creation of a European patent with unitary effect, referred to as unitary patent, and a unified European patent court. There are many advantages of having a unitary patent system, including potential substantial cost savings for companies. The European unitary patent will soon guarantee patent protection for inventions in 26 countries across Europe, an attractive proposition. A unified court will also mean companies won’t have to weather costly litigation proceedings in multiple countries.
But much remains to be seen about how the reforms will be implemented and adopted: they still require broad adoption by required member EU countries and companies within Europe. So we watch this space with anticipation.
My advice for an operating company is to arm yourself with a robust and comprehensive IP strategy, one which is very closely aligned with your overall company strategy. Where I see companies falling short is that their IP strategy is decoupled from the broader corporate strategy teams and individual business unit strategies. This leads to an IP strategy that is highly ineffective since it will not adequately address short and long term company products/services roadmaps.
Additional scrutiny
In IP terms, the stakes really couldn’t be higher. One issue that is so controversial at the moment is that concerning SEPs (Standard Essential Patents). The FRAND assumption – fair reasonable and non-discriminatory – has become heavily contested: what is fair, reasonable and non-discriminatory to one person, or in one context, may be unfair, unreasonable and discriminatory to others, or viewed in a different context.
This means that the exact conditions under which a license will be FRAND compliant are not a universally accepted norm. The proposed Unitary Patent Court will have to deal with this and other controversial issues such as patent validity challenges and uncertainty. Issued patents which you thought were valid and secure are now constantly being challenged in court due to validity. Will the strong issued patents you thought you had hold up in court?
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