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What is the UP and the UPC?

A unitary patent is a ‘European patent with unitary effect’, which means a European patent which has been granted by the EPO under the rules and procedures of the EPC to which, after granting, unitary effect is attributed for the territory of the participating member states at its proprietor’s request. The unitary patent offers broad and uniform territorial protection. It also provides better value for money and reduces both complexity and the associated costs.

 

The ‘unitary effect’ means that unitary patents are governed by one set of patent protection rules only. Furthermore, the patent proprietor will need to pay one renewal fee directly to the EPO in order to keep a patent in force in all member states.

A ‘Unified Patent Court’ is a single court with the power to issue decisions regarding infringements upon and the validity of existing EP rights and the new unitary patent right. Their decisions will be valid across all contracting EU member states.

 

The ‘Unified Patent Court’ should provide simpler, quicker, and more cost-effective judicial procedures as parties will not need to engage in parallel patent litigation in different member states. However, decisions which are taken by the ‘Unified Patent Court’ will affect unitary patents and traditional European patents.

What is the difference from the traditional EP?

The ‘Unitary Patent System’ is built on the ‘European Patent Convention’ (the EPC). This means that the pre-grant phase is the same as for European patents. Applicants file a European patent application when seeking a grant for a European patent for some or all of the EPC contracting states with the EPO. The process examines their application in accordance with the EPC and, if all formal and substantive requirements for patentability are met, grants a European patent. Then, instead of validating their European patent in several states which can be a time-consuming and complex administrative process, patent proprietors can obtain a unitary patent by filing a single request with the EPO. There will be no official fee for filing a request for unitary effect. This will reduce associated administrative and validation costs. The unitary patent will take force immediately in all member states and there will be no translation costs or requirements after the transition period has expired. However, during the transitional period, a translation will have to be filed along with the submission of the unitary patent request. This, for example, will need to be an English-language translation of full specification if the patent is granted in French or German, while those which are granted in English will need a full translation into any language of the EU.

A one-off renewal fee for unitary patents will be payable to the EPO and not to each validated country as is the case with the traditional European patent. There will be only one fee, procedure, currency, and deadline. The unitary patent should be less expensive on average than a European patent which is validated and maintained in four countries (DE, FR, GB, and NL). The more countries there are in which a traditional European patent would have been validated, the more cost-effective a unitary patent will be. As regards the management of a unitary patent, transfers, licences, and other rights, there will no longer be the need to register on a country-by-country basis in the national patent registers. Instead, a single registration which is entered into the ‘Unitary Patent Protection’ register which is centrally administered by the EPO will be sufficient.

Traditional European patent
Unitary patent
Filing and formalities examination
Traditional European patent
Unitary patent
Search report with written opinion regarding patentability
Traditional European patent
Unitary patent
Substantive examination
Traditional European patent
Unitary patent
Acceptance by the European patent office
Traditional European patent
Unitary patent
Patent validation
Traditional European patent
The patent must be validated in the selected EPC countries
Unitary patent
Uniform protection in all member states
Translations regarding validation
Traditional European patent
A translation of any claims and/or a description must be provided where applicable
Unitary patent
No translation costs or requirements following the end of the transition period
Renewal fees
Traditional European patent
Must be paid in each validated country
Unitary patent
A single fee must be paid to the EPO
Court jurisdiction
Traditional European patent
UPC or national courts
Unitary patent
Only the UPC
How will this change the patent landscape in Europe?

A unitary patent enables inventors (whether they are private individuals (so-called ‘natural persons’), companies, or institutions) to obtain uniform and broad territorial protection within the participating member states. Unlike the EP patent, the unitary patent will not need to be validated or renewed in each individual country after it has been granted. Instead, protection will automatically come into effect in the participating territories once the unitary patent has been granted by the EPO. Only one renewal fee needs to be paid to the EPO. All infringement disputes will be overseen by a single court (the ‘Unified Patent Court’). Unlike the EP, the unitary patent will function as a single patent which must be maintained, transferred, abandoned, or revoked as a whole. An opportunity to have an instant patent protection in more than twenty EU countries would have a role to play within the patent landscape in Europe. However, whether or not the unitary patent is selected depends upon the specific applicant’s business strategy. Unlike the present European patent system, patentees will not be able to select those jurisdictions for which they seek protection with a unitary patent (as it automatically covers all participating countries), and will instead be required to pay the cost for having a patent granted and maintained in all countries, even if protection in most of the member states is not needed.

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