The European Unitary Patent Package is predicted to come into force as soon as Autumn 2016. It includes the newly-created Unified Patent Court (UPC) and the European Patent with Unitary Effect.
Table Of Contents
1. How is Unitary Patent different from Current system?
1.1. Current System
Under the current system, a patent is granted and the owner of the patent chooses to validate in all the individual contracting states that they wish to seek protection in. The validations are independent of one another and are subject to the legal requirements of the individual countries. Patent disputes are carried out separately in the Courts of each country. The result is a bundle of national Patents issuing from a single application granted by the European Patent Office, which are enforced through individual national courts and renewed separately in the respective national patent offices.
1.2. Unitary Patent
The Unitary Patent is a single patent providing protection in European Union (EU) member states that have ratified the UPC Agreement. Patent disputes will be carried out in the Unified Patent Court – one patent/one court. A single translation of the entire patent specification shall be filed*. A single renewal fee will be payable each year, rather than separate fees in respect of each of the unitary patent member states. Renewal fees will be based on the cost of renewals in the four most frequently validated EP states.
*During a transitional period of 6-12 years this will also require the filing of a translation. For patents granted in French or German, a translation into English will be required. For patents granted in English, a translation into any other official language of the European Union will be required. The transitional period with respect to translation arrangements will start when the Agreement comes into force.
1.2.1. Participating States
To date, twenty-five EU member states have signed up to the UPC Agreement and ten have ratified the Agreement, namely Austria, Belgium, Bulgaria, Denmark, France, Luxembourg, Malta, Portugal, Sweden and Finland. Spain, Poland and Croatia have not signed, but have the option to join.
2. How do I get a Unitary Patent?
2.1. Opt-in, Opt-out or Both
The application process for a European Patent remains the same, but once a patent is granted, the owner can:
- Opt-out: use the current system of bundled patents; or
- Opt-in: request unitary effect to obtain a single patent which will cover the states that have ratified the UPC agreement; or
- Both: request to opt-in to obtain a single patent which will cover the states that have ratified the UPC agreement AND use the current validation system with respect to the EPC contracting states which are not in the EU or have not signed up to the unitary patent system.
2.2. Is there a time limit to making the request to Opt-In?
There will be a non-extendable period of one month from grant for requesting unitary effect.
2.3. When will the Unitary Patent come into effect?
The system will come into effect after thirteen EU member states have ratified the agreement providing this includes United Kingdom, France and Germany.
2.4. Which states will be covered by my Unitary Patent?
The Unitary Patent will only cover countries which have ratified the UPC Agreement at the date of registration. Initially this means that a Unitary Patent may only cover thirteen of the twenty-five participating states. The remaining twelve states may ratify over time, which means the geographical scope of the Unitary Patent will change over time. The geographical scope of the unitary effect for an individual European patent will remain fixed and will not be extended to those Contracting Member States that ratify the Agreement after the registration.