What it is
The Unitary Patent, commonly referred to as EU Patent, is a new Intellectual Property right introduced in the framework of the Unified Patent Court Agreement.
The "Unitary Package" is operational from June 1 2023, including the Unified Patent Court as well as the Unitary Patent.
The Unitary Package, apart from being an elaborate system establishing not only a new European patent but also a new court, has a wide-ranging effect on:
- pending European Patent applications,
- European Patent validations in force in the States where the Unified Court will operate,
- relevant present and future agreements.
The new Unitary Patent comes into play at the end of the granting procedure of a European Patent, extending its effects within all the Member States of the European Union that have ratified the UPC agreement.
The Countries of Reference for the Unitary Patent and the UPC
At the present time they are 17: Austria, Belgium, Bulgaria, Germany, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden.
If all the States that have currently signed the UPC agreement ratify it, the Countries involved will become 24 (in green on the map).
At the moment the entry of Spain, Croatia and Poland is not foreseen.
The role of the Unified Patent Court
The Unified Patent Court is a single court competent for disputes relating to both 'standard' European patents (i.e., those granted by the European Patent Office - EPO and individually validated in the countries concerned) and 'new' Unitary Patents.
Its decisions are binding on all countries that have joined the agreement.
UPC: obligation or alternative?
For a transitional period of at least 7 years (extendable by a further 7 years), holders of 'standard' European patents will have the option to remove their patent rights from the jurisdiction of the UPC by submitting an opt-out request.
Thus, national courts continue to have exclusive jurisdiction over disputes, as was the case before the advent of the UPC.
Unitary Patent or 'standard' European Patent, which is more convenient?
The more it is intended to extend (at territorial level) the effects of a patent, the more cost-effective the Unitary Patent will be. In the event the holder is interested in at least 4-5 countries of the Union participating in the agreement, the Unitary Patent entails lower costs than the individual national validations of the European Patent: both because of the absence of a validation phase and because of the lower amount of annual maintenance fees. In a nutshell, aside from strategic considerations that will have to be assessed on a case-by-case basis, as the number of countries in which protection is to be extended increases, so does the convenience of the UP compared to the 'standard' European Patent.
Net of strategic considerations that have to be assessed on a case-by-case basis, as the number of States in which protection is to be extended increases, the convenience of the UP also increases compared to the "classic" European Patent. Every strategic consideration must take into account the fact that the Unitary Patents are immediately under the exclusive competence of the UPC.
Unitary Patent: how to be ready
The 'Unified Package' comes into effect from June 2023 but it's already possible to take the transitional measures provided for by the European Patent Office. Thus to prevent European patent applications close to being granted shortly before the Unitary Patent enters into force from being excluded from the Unitary Patent,
Moreover, thanks to german ratification, it is possible to take the opt-out actions that can be brought before the Registry of the Unified Patent Court to remove from its jurisdiction European patent applications and European granted patents validated in the States in which the Court will operate.