BACKGROUND

Patent law is national in nature. If a business obtains a patent in one
country, it only covers that country. To affect a competing business in
France or Germany, an innovative business must obtain patents in France
and Germany. Until 1978, separate patent applications had to be filed
country by country. When the EPO started in 1978,  a single application
could be filed at the EPO to cover all participating countries. This is
a unified application process and not a unified patent. Once the patent
is granted by the EPO, it splits from a single application into a bundle
of national patents. These must then be validated in each state of
interest.

After grant, the various patents then have to be renewed, enforced,
revoked and transferred separately in each country. Where patent
infringement occurs in more than one country, this can mean bringing
court cases in multiple jurisdictions.  

SWPAT
excluded officially by the EPC (article 52 (c)) but the interpretation of the words “as such” have caused a lot of problems and the EPO still issues swapts.

With the relaunch of the unitary patent question there’s another probable way to get through swpats.

THE CURRENT DOCUMENTS
        • a draft Patent Regulation for a Unitary European Patent
        • a draft Regulation for the languages regime for the Unitary European Patent
        • a draft Court Agreement
        • ancillary documents for setting up and running the Court

The Unitary European Patent
As Spain and Italy have objected, this proposal currently covers only 25
of the 27 Member States of the European Union (the “Participating Member
States”). = Enhanced Co-operation Procedure

Draft Regulation: when an application filed with the EPO reaches
grant, the applicant can choose(within one month of grant) whether to
convert the 25 patents for the Participating Member States into a
Unitary European Patent.
Any remaining patents which the applicant wants to keep from the bundle
of granted patents will need to be validated nationally within three
months of grant in each of the other countries.

The provisions for the granting and revocation of patents by the EPO are
still set out in EPC the (European Patent Convention). This sets out:
       how the EPO operates
       for what it will grant patents
       how it should do so
       The EPO is not part of the European Union

There are several complications concerning the unitary patent package besides the language question. The ECJ also issued an opinion which said that the Draft Agreement on the Unified Patent Court is not compatible with the EU law.