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A Unitary Patent - also known as a European Patent with unitary effect - is a single intellectual property right covering at least 16, and possibly up to 24, of the 27 EU states. Spain, Poland and Croatia are the three states that have not yet signed up to the complete Unitary Patent package.
The Unitary Patent is a single patent right covering up to 24 participating states, whereas under the present system, a granted European Patent becomes a number of individual national validations. Under the new system, patentees will pay a single renewal fee for all participating states rather than one fee for each national validation. Further, a single court decision, e.g. on infringement or validity, will apply across all participating states, not just one state.
You will be able to apply for a Unitary Patent in the same way as you do now for a European Patent. The application procedure is administered by the European Patent Office in the same way as at present. However, the difference is that after grant you will be able to elect for the application to become a Unitary Patent.
The Unitary Patent will be an alternative option to the national validations presently available after grant of a European Patent application. It is not mandatory for a European Patent application to become a Unitary Patent - after grant you have the option of either a Unitary Patent in the participating states or the national validations available at present. Individual national patents will also still be available via the national patent offices.
This depends on your situation, in particular the number of states you want to cover, but for more than around 5 or 6 states the Unitary Patent is likely to save you money.
Savings could initially be made with a Unitary Patent at the grant stage, in particular on translating the patent after grant. A Unitary Patent requires only a single translation whereas national validations may require translations into a number of different local languages.
After grant, savings could be made with a Unitary Patent on the cost of renewal fees. A single renewal fee will be payable for a Unitary Patent which is set to match the renewal fees for DE, FR, GB and NL combined (renewing up to 24 states for the price of 4), whereas separate renewal fees are payable for each national validation. Since the cost of the renewal fee was decided, the United Kingdom (GB) has withdrawn its ratification of the UPC.
If you operate in a small number states, you might prefer to continue validating your granted European Patents in those states. However, because the alternative option of a Unitary Patent is relatively cheap for the geographic coverage provided, wide-ranging protection might become a viable option.
Any states that aren't participating in the Unitary Patent system but are part of the European Patent Convention can be covered by validating the granted European Patent in those states, as you do under the present system.
The Unitary Patent will be available once the Unified Patent Court Agreement (UPCA) has been ratified by the required number of member states - only Germany is still required. The German Bundestag and Bundesrat have passed the bills necessary for German ratification of the UPCA and Protocol on Provisional Application (PPA). Assuming no further constitutional challenge is filed, this means Germany is free to ratify the UPCA and PPA at any time. If two further states ratify the PPA, the PPA can come into force and final steps to implement the UCPA can commence. The UPC may become reality towards the end of 2021 or early 2022. Unitary protection will be available for new applications filed after the UPC agreement comes into effect but also for pending European applications filed after 1 March 2007.
A Unitary Patent will be litigated exclusively in the Unified Patent Court (UPC).
For more information please contact Martin Jackson