Will the Unitary Patent be joined by a Unitary SPC right?

As preparations for the Unified Patent Court (UPC) and European patent having unitary effect (Unitary Patent) move ahead, the European Commission has opened a call for evidence on whether the new system should include a Unitary Supplementary Protection Certificate (Unitary SPC). 

SPCs are currently examined and granted by national patent offices, even when based on centrally granted European patents. With the advent of the UPC and the pan-European Unitary Patent, however, the need for unitary SPC protection, that is a Unitary SPC, has now arisen. 

If a Unitary SPC is to be established, this brings with it issues of legal certainty and transparency in the granting procedure that will need to be ensured. An example some of the issues that are currently under discussion are: 

• Who should be the Unitary SPC granting body as the unitary character of the right would require that it is controlled by EU bodies? Options discussed include the EPO, the EUIPO or another EU institution like the EMA or even a Virtual Office with examiners from national patent offices. There also need to be clear timings and final deadlines for filing the application for an SPC.
• The forum for legal recourse under the right must be clarified: should remedies for revocation be brought before national courts with the decision having effect for the whole territory of the Unitary SPC or rather before the UPC itself? In addition, the fee system must be affordable, in particular for SMEs.
• Territorial scope is another point of discussion. The Unitary SPC would logically require that the patentee to obtain marketing authorizations in all participating member states. In this regard, it needs to be decided whether only a centralised marketing authorization would allow for the grant of the Unitary SPC; or, whether national/decentralised marketing authorizations would also be sufficient, provided that it is ensured that the Unitary SPC will not then cover countries where no marketing authorization was obtained.

In addition to the Unitary SPC, there is also the issue of the shortcomings of the current SPC system due to its national character, in particular with regard to divergent outcomes of national grant and revocation procedures, sub-optimal transparency of SPC-related information, and high costs and administrative burdens with regard to enforcement and litigation of SPCs.

To address all of these issues, the European Commission has now opened a ‘call for evidence’ to receive views from stakeholders, with the purpose of preparing an impact assessment and any necessary legislation. The call is open until 5 April 5 2022.

The call for evidence can be found here.