Freedom to operate analyses in the era of Unitary Patent system

Author: METIDA associated partner, Estonian patent attorney, patent consultant Mikk Putk

shutterstock_354376550There has been a lot of discussions about coming Unitary Patent System and related topics like litigations, court system, annuity fees and translations, but there has been surprisingly little talk about how the new patent regime is going to affect freedom to operate (including FTO searches and analysis) and strategic decisions of technology companies.

The European Patent Office (EPO) grants approximately 70000 patents every year. Considering the growing trend of granted European patents per year, by 2020 the number of granted European patents is about 80 000-90 000.

Today very few granted European patents are validated in smaller European countries but when the Unitary patent system takes effect there will be every year tens of thousands new patent rights that will narrow the FTO in many European countries, increase patent infringements and litigation risks.

Whereas most of granted European patents are validated in Germany, France, United Kingdom, then in smaller countries the number of validated patents is many times less. For example, only about 5000 patents per year are validated in Finland, about 3500 in Portugal, 1300 in Estonia, 1400 in Lithuania, 1050 in Latvia.

The countries where the number of validated European patents is lowest will be affected most regarding freedom to operate. In those countries, the uncertainty over freedom to operate and risk of patent infringements raises dramatically.

This brings us to a serious problem that soon in the future there will be every year tens of thousands new patent rights more than on previous year. This puts thousands of companies (especially SMEs, startups) into completely new and complicated position, especially those who haven’t paid much attention to freedom to operate searches and analysis or who don’t have such daily routine nor resources to carry out FTO analysis so far.

Thereby the need for high quality freedom to operate patent searches and analysis is also increasing rapidly.


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