Decisions on grant for applications at the EPO
For any European Patent that grants after the Unified Patent Court Agreement (UPCA) comes into force (including applications which are currently pending), applicants will be able to decide whether or not the European Patent should become a Unitary Patent for those countries participating in the UPC or whether to proceed with conventional national validations of the European Patent in all or some of those countries. The choice will have cost implications and implications for which court(s) will have jurisdiction. For countries not participating in the UPC, validation will proceed as before. Filing, examination up to grant and post-grant opposition are not affected.
As shown in the examples below, in the future there are two main options for obtaining patents using the centralised examination and grant procedure at the EPO.
Selects a Unitary Patent (UP) and optionally individual national validations of a European Patent for territories not covered by the UP. This option benefits from the cost and enforcement advantages of the UP, at the expense of some flexibility and risk of an all-or-nothing central revocation action at the UPC. This option will be available for the foreseeable future.
Selects individual national validations of a European Patent thereby retaining flexibility (e.g. for renewal fee payments) whilst allowing the optional use of the UPC for those countries taking part when not opted out. Jurisdiction for Spain and the United Kingdom and other non-participating countries remains solely with their national courts (no shading).
The UPC will have exclusive jurisdiction for Unitary Patents; it will not be possible to enforce or revoke a Unitary Patent in a national court, though post-grant opposition at the European Patent Office will apply to the Unitary Patent as well as nationally validated European Patents.
The main attractions for choosing a Unitary Patent are wide geographical coverage at reasonable cost and increased simplicity. There is also some increased flexibility when bringing an enforcement action under circumstances where the patent claims multiple steps that the infringer performs in multiple participating countries or for a distributed computer system spread over several participating countries. For some applicants, the threat of a central revocation action at any time in the lifetime of the patent, and the loss of flexibility compared to validations of a European Patent, will outweigh those advantages. For other applicants, the broad geographical coverage will not be of interest.