A Unified Patent for Europe: Decades in the Making

Since 2016 there have been negotiations within the European Union (EU) concerning a radical change of the patent system in Europe. At the moment, companies and citizens can apply for either national patents within a single country, or for a bundled patent that spans multiple countries. The establishment of this Unified Patent Court (UPC) would eliminate both of those options in favor of a unitary patent across all member nations. This idea is popular among European nations, as the European Patent Convention, which has overseen the passing of international patents since 1973, began passing unitary European patents for the past seven years. This originally started as a way for the EU to reduce translation and litigation costs, but member states favored the unified enforcement process for its simplicity and effectiveness. Despite this favor, the European Council and European Parliament have faced a number of challenges in actually implementing the Unitary Patent and the Unitary Patent Court. The concept of a single European patent has been a topic of discussion for over three decades. Only recently has this concept become a solidified idea and have there been legitimate motions to implement the program.

Advantages of the Unitary Patent

The current patent structure in the EU is more of an intricately intertwined web than it is a cohesive system. Those who hold patents can have rights in any combination of the 28 member states. Given the immense number of patents and the amount of possible combinations, things get incredibly complicated. Considering the fact that the European Union is an economic bloc, it makes little sense that the patents are not granted across the whole EU. It would allow patent holders to have a wider geographical range of intellectual rights for a significantly lower cost than getting a patent in every single country individually. Both transaction costs and costs of the patent itself would be driven down, as patent holders would only have to go through one body to obtain one. At the moment European patents are 11 times more expensive than American patents and 13 times more expensive than Japanese patents because of the tangled bureaucratic system, but a unified patent court will almost certainly change that. Beyond just the transaction costs and wider spread of rights, this can allow the European Union’s economy catch up with the global economy. Patents are intrinsic in promoting growth, competition, and innovation, but the EU has significantly fewer patents than the leading nations. For instance, the United States granted 2 million patents in 2010 and Japan granted 1.4 million patents, which accounts for roughly half of all global patents in 2010. Meanwhile, the EU granted under 200,000. There is a lot of room for improvement, which would help the Eu’s stability and status as an economic force. Despite this, the Unified Patent Court is not in effect. There have been many challenges in recent years that have prevented its implementation, but the amalgamation of states remain hopeful that these challenges will be overcome.

Unitary Patent Challenges

Though there have been many minor setbacks in the attempt to establish a Unified Patent, the most publicized reasons for its not coming to fruition are Brexit, and Germany’s constitutional complaint. Britain’s decision to leave the European Union means that they are no longer bound by or party to the EU regulations, yet they remain a signatory to the Unified Patent Court Agreement, which is an international treaty dedicated to establishing the unified patent system. As the UK prepares to officially leave the EU, the question has arisen whether it can ratify this treaty as a non EU member. To further complicate things, the treaty is the treaty wishes to create a central court in London to oversee European patents, despite London being outside of the EU jurisdiction. Nevertheless, 16 nations ratified the treaty in 2018, enough that it is able to be established. Unfortunately getting enough signatories in 2018 was not enough for the Unified Patent Court, as the Federal Constitutional Court of Germany launched a constitutional complaint against the legislation enabling Germany to ratify the treaty in late 2018. This complaint is supposed to be presented to the courts in order for the nation to decide whether to ratify or not, but it seems that no progress has been made. Trying to create a body which agrees with the legislation of all EU member states has proved incredibly difficult, making the process of ratification long and tedious.

Unitary Patent Progress

Despite there being many setbacks to the implementation of a unitary patent, 2018 also brought with it many steps forward in the unitary patent project. To start, the Italian government approved a bill which is aimed at adapting Italian patent law to fit the UPC. With the current system in Italy a European patent is valid in Italy once an Italian translation of the patent has been filed in the country within three months of the patent grant. However, there is no guarantee that a unitary patent will take fewer than three months, so the Italian government is making moves to change this rule. Another step forward is that Bulgaria ratified the Protocol on Provisional Application of the UPC Agreement, meaning that fewer than four ratifications are required now. Bulgaria was the tenth out of a necessary 13 states to ratify.

What Now?

A single patent court for the whole of Europe has been a dream of the EU’s for many decades. They have made significant steps in creating an official protocol and treaty that will allow it to be put into place. However, it will take potentially decades longer to see it fully implemented because there are so many individual governmental laws and procedures that have to be altered within each member state. It seems that the majority of governments are willing to make these changes. It is only a matter of waiting to see if Europe successfully implements their dream of a unified patent.

Eliza Farley is currently a freshman at Duke from New Canaan, Connecticut. She is studying economics and computer science.

Renewable Energy

Germany’s Environmental Policy: A Deeper Look

On May 11, 2011, German Chancellor Angela Merkel announced that Germany would be phasing out all nuclear energy and shutting down all seventeen of Germany’s nuclear power stations by 2022. This monumental and groundbreaking decision put Germany in the spotlight and called attention to Germany’s overarching emphasis on environmental policies. Throughout history, Germany has proven to be one of the most environmentally friendly, if not the most environmentally friendly, countries in the world both through their policies and their citizens’ commitment to sustainability.

Germany has several environmental laws that set them apart from the rest of the world and elevates their commitment to the environment. A few notable policies include the Renewable Energy Act, the Eco-tax, the Cogeneration Act, the Energy Conservation Act, the Energy Conservation Ordinance, and the Ecodesign Directive (ErP).

The Renewable Energy Sources Act

The Renewable Energy Sources Act is probably the most essential aspect of Germany’s nuclear phase out and has proven to be a vital part of Germany’s Energiewende strategy, which loosely translates to energy transition. As stated by the German Federal Ministry for Economic Affairs and Energy, “renewable energy is the most important source of electricity for Germany,” so much so, that renewable energy is one of the “central pillars in Germany’s energy transition.” The Renewable Energy Sources Act aims to transition all created energy and consumed electricity towards renewable sources. There are a few main mechanisms through which this is done, including the integration of electricity from renewable energy sources into the electricity supply grid and the direct sales of electricity from renewable sources. Additionally, the price of renewable energy-generated electricity is determined through auctions and is always kept low to encourage market sales. The Federal Ministry for Economic Affairs and Energy notes an impressive progression in renewable energy through the aid of the Renewable Energy Act, which has increased renewable energy by 30 percent from 2000 to 2017. Overall, the Renewable Energy Act has proven to be the most successful tool for boosting the growth and usage of renewables in Germany.

Ecological Tax Reform

In 1999, Germany introduced the eco-tax, a three-stage reform plan that attempts to reduce fossil fuel consumption. The first stage, implemented in 1999, put a tax on gasoline, heating fuel, natural gas, and electricity. The second stage was implemented from 2000 t o2003, and increased taxes that were instituted during the first stage. The third stage maintains the 2003 period tax levels, however requires the government to continue comprehensive studies, evaluating the effectiveness of these taxes.

The implications of this tax require that the federal finance ministry reports on their penetration of biofuels as well as the price developments of biomass, crude oil, and automobile fuels every two years. This requirement ensures that all prices are transparent to the public. Another implication of these taxes are the increased prices of fossil fuels, which have led to competition in the renewable energy technology field. These increased taxes have actually incentivized companies to create more environmentally friendly energy sources and to do so in the most efficient way possible.  

The Cogeneration Act

The Cogeneration Act, also known as the Heat-Power Cogeneration act, was adopted in 2002 in an effort to shift 25 percent of Germany’s power supply to come from cogeneration units by 2020, which combine heat and power to generate electricity and usable heat, simultaneously. By establishing this act, Germany plans to increase their power and heat efficiency through paying bonuses for each kilowatt-hour of power produced by a cogeneration unit. The only major requirement for receiving these bonuses is that the cogeneration unit must effectively reduce at least ten percent of primary energy consumption, while also accounting for the energy lost from primary energy consumption. The Cogeneration Act was updated in 2017 with two major revisions: the bonus was increased from 5.41 euro cents to 8 euro cents and the time frame for the act was changed from 10 years to 60,000 operating hours of cogeneration energy.

Energy Conservation Act

The Energy Conservation Act sets up the legal framework for promoting energy transition in the building sector. Its purpose is to implement the German Federal Government’s decisions about energy and the act is based on overall European guidelines. The act’s last amendment, enacted in 2013, specifically provides the legal basis for the Energy Conservation Ordinance. It also introduces an energy standard requirement to new buildings which involves reducing their energy consumption to nearly zero, coined as a “nearly zero-energy building.” This is done by having the building generate just as much energy as it consumes within a year.

Energy Conservation Ordinance

The Energy Conservation Ordinance was introduced in 2014 and has several key amendments that create a framework for the energy of buildings. One of the key amendments included in the ordinance is a higher efficiency standard applied to new buildings built from January 1st onward. This standard requires an approximate 25 percent reduction of energy consumption per building and 20 percent reduction of heat transfer loss. Another amendment included is the obligation to disclose important energy information and figures, when advertising real estate. The ordinance also includes an amendment clarifying and enforcing the obligation to present an energy performance certificate either to potential buyers and tenants when evaluating real estate or to the public in buildings that are frequently visited by the public. These amendments work in effort to increase transparency in the energy system and encourage “good” performance ratings to display.

Ecodesign Directive (ErP)

The Ecodesign Directive is a European directive set in 2005 that states minimum requirements for creating environmentally friendly and ecologically considerate product designs. It has been utilized by Germany often, in order to aid the sustainability of design in Germany and  drive the competition in the eco-design field. At its height of success, the Ecodesign Directive can strengthen and stimulate the market so that it is filled with environmentally friendly and sound products, while furthering incentivizing sustainable designs.

There are many other laws and policies, such as the Renewable Energies Heat Act, that act as important players in German environmental policy, aside from those described above.

Germany’s current state of environmental superiority is a testament to the real environmental improvement that may occur when all of these laws, acts, ordinances, and other regulations work in conjunction and are followed by the German people. German environmental policies can, and should, act as a guideline for other countries to follow in suit when trying to increase sustainability and decrease harmful emissions, such as fossil fuels. Additionally, it is the effort and the devotion of the German people towards the environmental cause that puts Germany’s commitment to the sustainability above and beyond all others.

Chloe Meyers is a sophomore at Duke from Los Angeles, California. She is studying Environmental Science and Policy and Psychology.