A new instrument to facilitate innovation protection
While in Argentina, Paraguay, and Uruguay we continue to discuss the benefits of the Patent Cooperation Treaty (PCT) and the convenience of ratifying this agreement, the Europeans have just launched a new instrument to simplify, make more cost-effective and promote the protection of innovations, new technologies, and any creation of the human intellect resulting from human ingenuity. On June 1, 2023, the new European patent with unitary effect (PU) took effect in the 17 EU (European Union) member states.
This new procedure further facilitates processing and granting patent applications, especially for European SMEs. It means a substantial competitive advantage for member states’ SMEs and governments, reducing costs and the administrative burden even more than the European patent. Patent holders no longer need to validate patent titles in each of the other European Patent Convention (EPC) member countries, a situation that gave rise to the European patent administered by the European Patent Office (EPO). The new system allows innovators and companies to request unitary effects for their European patents. This European patent with unitary effect will now be valid in all member states that have ratified the Agreement on a Unified Patent Court (Agreement). Under the new procedure, it is no longer necessary to comply with specific national guidelines, in particular, the need for validation which is currently required for European patents (although this will continue to be necessary for countries that have not granted the Agreement), and the need to pay fees and translations in each of the EU countries, which was previously required.
The European Patent Office (EPO) was already providing benefits to inventors and innovators by granting a patent for the European Patent Convention (EPC) member countries, including UE countries. But the UP is taking a step further toward simplifying the procedure by avoiding unnecessary bureaucratic processes.
Can you imagine a Mercosur Patent Office that grants a single patent valid in all member countries? Currently, four offices are doing the same work and putting in time and effort to obtain a single patent. We could have the best talents—engineers, chemists, experts in software, science, technology, and other related fields—performing research for a patent application only once. Then, in case the patent is granted because it meets the requirements of
In our Mercosur countries, we don’t have human and material resources to spare. Nevertheless, each country and patent office still works like its three neighbors. We quadruple our efforts and expenses concurrently and independently, doing the same thing.
It is time to rethink the entire intellectual property system and adapt it to the needs of globalization and e-commerce.
Additionally, the Unitary Patent enabled the Agreement grantors and participating member states, of which there are currently 17, to proceed with the signature of the Agreement on a Unified Patent Court (UPCA), which has jurisdiction over the enforcement and revocation of Unitary patents and existing European patents. The UPC will mean better enforcement of patent rights, and provide an adequate legal framework for patent litigation and avoid possible inconsistent rulings. In addition, it will generate a rich jurisprudence in the field as judges become patent experts, thereby avoiding decisions issued by the various national courts in EU countries that contradict each other and the need to go to the European Court of Justice to settle the issue (although it is not foreseeable at this stage that all EU countries will grant the Agreement).
As members of Mercosur, we might look forward to having a regional patents office, a regional trademarks and designs office, and a court of experts in the field to deal with issues related to trademarks and patents. Offices can be spread out in different cities of the four Mercosur countries, with the best experts in each country. Regional courts could also be available in other countries.
The importance of a regional patents office is especially true now that negotiations between the EU and Mercosur are moving forward again. President Lula da Silva has expressed Brazil’s decision to conclude such a treaty, and the European Commission President, Ursula von der Leyen, has just visited Brazil and Argentina, expressing the desirability of signing the treaty between the two blocs before the end of this year.
Argentina and Mercosur have another excellent opportunity to expand trade into a market of more than 500 million consumers. Let us hope we seize it this time.
By: Dámaso Pardo, Intellectual Property Partner | Leading intellectual property lawyer and former National Institute of Industrial Property (INPI) president.