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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 will be administered by the European Patent Office in the same way as at present, except that after grant you will be able to elect for the European Patent to become a Unitary Patent.
In respect of the participating states, 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 for those participating states - after grant you will have the option of either a Unitary Patent or the national validations available at present. For EPC states that are not participating, the normal national validation routes for European Patents will still be available. 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. 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 individually 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, including Germany. Germany is free to deposit its instrument of ratification of the Protocol on Provisional Application (PPA) with the EU at any time. The chairman of the UPC preparatory committee has acknowledged that the express mention of London and the UK in the UPCA and PPA respectively “needs to be dealt with by the State Parties in accordance with international law” and that he is “hopeful that this can be done in a pragmatic way that will avoid any further delay”. Assuming this can be achieved, if two further states in addition to Germany deposit instruments of ratification of the PPA, the PPA can come into force and final steps to implement the UPCA can commence. Germany is expected to deposit its instrument of ratification of the UPCA once it is clear when the UPC will be functional. This will start a four month sunrise provision before the UPCA enters into force. This could be as early as autumn 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