European Unitary Patent
Main features of the unitary patent
The Unitary Patent is a single patent for a significant portion of the EU, encompassing 17 states. It unifies property rights for these 17 countries, allowing consistent enforcement and challenges.
The unitary patent system builds on the EPC in that its pre-grant phase is unchanged from that of a ‘classic’ EP patent and is administered as normal by the European Patent Office (EPO), including opposition and appeal procedures. Within one month of the grant date, an applicant chooses the form of EP protection as (a) a ‘classic’ European patent validated in individual national states, (b) a ‘unitary’ patent, or (c) a combination of a ‘unitary’ patent and validation in additional individual national states not covered by the ‘unitary’ patent.
Geographical scope
The unitary patent or EU patent is intended to unify patent protection within the EU. There are a number of countries that do not currently participate. However, the patent is valid in the following 17 EU countries:
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden.
These countries appear in blue on the map on the left. For reference, the large number of member states of the European Patent Convention appear in red on the other map.
The following countries are likely to join in the next few years:
Cyprus, Czech Republic, Greece, Hungary, Ireland, Portugal, Romania, Slovakia
However, the EU patent will not be able to cover the United Kingdom, which has left the EU, or Spain, which has chosen to opt out.
Role of the European Patent Office
The European Patent Office is also responsible for granting the unitary patent.
The European Patent Office is not an EU body. The Office exists on the basis of a separate treaty. Nevertheless, the path to the EU patent / unitary patent leads exclusively through the European Patent Office.
The European Patent Office will continue to be active in granting patents for Europe and the EU. In particular, it will carry out searches and examinations. In addition, the European Patent Office will issue grant decisions which will be binding on all member states.
As before, post-grant steps must be taken to make a patent valid in certain countries. These steps include the payment of fees, the appointment of national representatives and, for some countries, translations. For example, at the end of the process, it may be determined that a patent should be valid in Germany, France, and the United Kingdom.
Instead of selecting these three countries, it is now possible to select “EU patent”. This will automatically select the 17 countries. In these 17 countries, fees no longer have to be paid individually, but only a single annual fee has to be paid to maintain the patent protection (up to 20 years from the filing date).
The EU patent is thus an additional option on the list of eligible countries. This list still includes all EU member states. Of course, these states can still be designated individually. However, this would be economically unreasonable if many states were to be designated. Interestingly, in addition to the “EU patent” selection, a selection of individual countries can be made. These are mainly non-EU states. Particularly interesting from an economic point of view are e.g. Great Britain, Switzerland or Turkey
Language rules
If the patent application was filed in English, an additional translation into an official language of an EU member state is required. If the patent application was filed in German or French, other official languages of the European Patent Office, a translation into English is required. SMEs may be eligible for fee reductions with respect to these translation requirements.
Fees
The renewal fees for the EU patent are roughly equivalent to the renewal fees for four countries. Thus, once four or more of the 17 designating countries are of commercial interest, it is usually worthwhile to choose an EU patent. However, designation of non-EU countries, such as the United Kingdom, will incur additional renewal fees.
Applying for a unitary patent
The European Patent Office provides application forms. The application must be accompanied by a translation. The application period is only one month from the date of grant.
Opting out
The single jurisdiction of the single European Patent Court can be an advantage, but in many cases it can also be a disadvantage. For example, patent protection may be lost for all 17 EU countries at the end of an invalidity action. It may therefore make sense, especially as long as there is little case law from the new court, to submit to the jurisdiction of the national courts. For this purpose, an application must also be filed shortly after the grant of a European patent.
Representation
All applications and actions listed here can be initiated by us.
Parallel national patent
The new EU patent (unlike the previous European patents) can coexist with national patents having essentially the same scope of protection. In view of the risk of EU-wide patent revocation at the end of an invalidity action, it is generally recommended to apply for and maintain at least one national patent in addition. A German patent is particularly suitable for this purpose.
The new Unified Patent Court (UPC)
Enforcing patents in Europe has become easier and generally more attractive to international applicants with the creation of the new Unified Patent Court (UPC). The UPC is a specialized court system that will have jurisdiction over European patents and provide a streamlined and centralized approach to patent litigation in participating European Union (EU) member states. More specifically, the court will have jurisdiction over all EU patents and those EP patents granted by the EPO for which no opt-out declaration has been filed.
This means that with a single patent, companies can now enforce their rights and resolve disputes in several countries simultaneously, reducing the cost and complexity of litigation. The UPC aims to create a more efficient and harmonized patent system, providing greater legal certainty for patent holders. This development will provide uniform and enforceable protection across a vast market, reinforcing Europe’s position as a key hub for intellectual property rights.
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