The Unitary Patent System
The Unitary Patent system is a framework that will make it possible to obtain patent protection in up to 25 EU member states by submitting a single request to the European Patent Office (EPO) instead of validating the granted patent in those countries individually. The 17 states which will participate in the Unitary Patent system when it starts are Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden (correct as of July 2022).
Obtaining a Unitary Patent is a post-grant procedure, and so the pre-grant prosecution of a European patent application will remain the same as it is currently. Once the European patent has been granted, a “request for unitary effect” can be filed at the EPO to obtain a Unitary Patent. This request must be filed within one month of the date of grant. The Unitary Patent system will co-exist with the European patent system that you are familiar with, and so it will be possible to validate a granted European patent in states not adhering to the system (including the UK) whilst also obtaining a Unitary Patent.
A major advantage to obtaining a Unitary Patent is the renewals process. Under the current system, annual renewal fees are due in every validated state. If a Unitary Patent is obtained, only a single annual renewal fee is payable to the EPO. This fee is also typically lower than if one were to validate in the Unitary Patent member states individually.
Once the system comes into force, there will be a transitional period of at least six years (and up to 12 years). During this transitional period, a full translation of the application into an official non-English language of an EU member state must be filed with the request for unitary effect. This has the potential to significantly increase the cost of the new system when compared to validating in only the territories of particular interest to you. It should be noted that after the transitional period has come to an end, translation will no longer be required.
The Unified Patent Court (UPC)
The UPC is a new international court that has been set up to deal with infringement and validity proceedings of both Unitary Patents and European patents. The decisions made by the UPC will apply in all member states that have ratified the Agreement on a UPC.
This means that granted European patents can be enforced centrally rather than having to conduct infringement proceedings in each state. However, it also means that your already granted European patents can be challenged in a new and untested court once the UPC is active.
During the transitional period, it will be possible to opt-out European patents (but not Unitary patents) from the UPC. If you would prefer this, or wish to discuss your situation, then please contact your attorney.
The start date of the Unitary Patent System/UPC
The Unitary Patent system is currently estimated to come into force towards the end of 2022 or in early 2023. The UPC will begin hearing cases from the same date.
It will only be possible to obtain a unitary patent if grant of a European patent occurs less than three months before the date which the system becomes active. If you would like to obtain a unitary patent for a currently pending application, then please contact your attorney for further information.
Harrison IP is a European firm with an office in France and our attorneys are able to represent clients through the Unitary Patent system and to act before the UPC. If you have any questions regarding the Unitary Patent system or the UPC, please contact your attorney or fill in the enquiry form here.