The Unitary Patent
The Unitary Patent (UP) is a single patent covering all participating Member States of the European Union (EU). It is available with almost no translation costs and has a single, relatively low, renewal fee. This offers the potential for substantial savings, especially where patent protection across most of Europe is desirable. It has been possible to request a UP from the EPO at the grant stage, and now that the UPC has come into effect, these UPs will proceed to grant.
UPs are now being granted by the EPO following the existing procedure for “classic” European Patents (EPs). All EU states are potentially participating Member States with the exception of Spain, Poland and Croatia, but to start with UPs will cover 17 EU states as shown by our landscape tool. The UP is an alternative to existing EPs, and EPs will remain available from the EPO. For example, EPs for non-UP states can be used in combination with a UP to achieve coverage outside the UP system.
Aside from the cost considerations, users need to be aware that the choice of the UP automatically carries with it the choice of the UPC; all UPs are subject to the exclusive jurisdiction of the new court and there is no possibility of opting out of the UPC if a UP is chosen. The benefits and risks of participation in the UPC should therefore be borne in mind in any decision regarding whether or not to choose the UP as an alternative to the EP in those participating Member States. The UP also creates new issues to consider in any transfer of rights. If there are any concerns around agreements involving a UP, please get in touch with your usual Carpmaels contact who will be able to advise further.
Concerning benefits, the UP could provide very significant savings – perhaps as high as 80% – in the cumulative lifetime cost of protection in all of the participating EU Member States compared to the same protection provided by an EP. You can find more information on cumulative year-by-year costs for protection using an EP versus a UP and EP combination, as well as a wealth of further information on the UPC here in our UPC Guide.
Landscape
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The classic patent system in Europe
The European Patent Convention (EPC) provides a legal framework for the centralised grant and opposition of European patents by and before the European Patent Office (EPO) for 39 Contracting States (the 27 Member States of the European Union (EU), plus 12 non-EU states including the UK). On grant, a “classic” European patent (EP) splits into a bundle of national patents. The national patents are individually validated (typically with translations required) and individual renewal fees are payable.
The national patents that make up the granted EP are individually enforceable, or subject to revocation in each jurisdiction. Thus, if a patentee wants to bring infringement proceedings in multiple jurisdictions, it is required to litigate multiple national patents. Each national patent that makes up the EP is a separate piece of property that is governed by the national law, so any assignment must be completed separately in each state.
This fragmented EP system is still available now that the Unitary Patent (UP) and Unified Patent Court (UPC) have come into effect. EPs will be used in addition to UPs, in particular to get protection in states that are not joining the UP system (e.g. Spain, Poland, Switzerland, Turkey and the UK). In addition, applicants may opt to use the existing EP system instead of the UP system, e.g. because it provides the option to opt out of the jurisdiction of the UPC, for a transitional period of at least seven years.
