UNITARY PATENT & UNIFIED PATENT COURT – OBTAINING A UNITARY PATENT

A Unitary Patent is a type of patent granted by the European Patent Office (EPO) that provides uniform protection across most European Union (EU) member states through a single application. The Unitary Patent system is part of the European Patent Package, which includes the Unitary Patent and the Unified Patent Court (UPC), designed to streamline and enhance the patent process in Europe.

The Unitary Patent offers a simpler, more cost-effective way for patent holders to secure rights in multiple EU countries. Instead of having to validate and maintain separate patents in each country, the Unitary Patent allows a patent holder to obtain a single patent with effect in up to 17 participating EU member states.

Key Steps to Obtain a Unitary Patent

1. File a European Patent Application: The process starts with filing a European Patent Application with the European Patent Office (EPO). This can be done for any invention that meets the requirements of patentability (novelty, inventive step, industrial applicability).
2. Examination and Grant of the European Patent: After filing, the EPO examines the application, ensuring it meets the necessary criteria. Once granted, the patent is issued by the EPO as a European Patent (EP) in the countries specified by the applicant.
3. Request for Unitary Patent: After the European Patent is granted, the applicant can request the Unitary Patent. This request must be made within one month of the patent being granted.
4. Designation of Unitary Effect: When requesting a Unitary Patent, the applicant must choose to have the patent apply uniformly across the participating EU member states. This applies to all EU member states that have ratified the Unitary Patent Regulation and the Unified Patent Court Agreement. As of now, the Unitary Patent covers 17 EU countries (the list may expand over time).
5. Automatic Validation: Once granted as a Unitary Patent, it automatically takes effect in all participating EU countries without the need for additional validation procedures. This simplifies the process and reduces administrative burdens.
6. Maintenance: The patent holder must maintain the Unitary Patent by paying annual renewal fees to the EPO. The fees are the same across all participating countries, making it more cost-effective than maintaining separate national patents.

Advantages of the Unitary Patent

1. Broad Coverage: A single Unitary Patent provides protection across multiple EU member states. With just one application and grant process, patent holders can secure rights in up to 17 participating EU countries (and potentially more in the future).
2. Cost Efficiency: The Unitary Patent eliminates the need for multiple translations, local validations, and separate maintenance fees in each country. This simplifies the process and can result in significant cost savings, especially for businesses seeking broad protection across Europe.
3. Simplified Management: The Unitary Patent reduces the complexity of managing a European patent portfolio. Patent holders no longer need to navigate the individual procedures for each country. Renewals are also streamlined, as they are handled centrally with the European Patent Office.
4. No Translation Requirements: Under the Unitary Patent system, there are no mandatory translation requirements after grant (unlike national patents, which often require translation into the local language). This reduces administrative costs and delays.
5. One Legal System: The Unitary Patent is subject to the jurisdiction of the Unified Patent Court (UPC), which allows for centralized and efficient litigation across all participating countries. This eliminates the need to file patent infringement or validity cases in multiple national courts.
6. Market Access: A Unitary Patent gives patent holders access to a unified market with high legal certainty, offering protection in some of the world’s largest markets, such as Germany, France, and the Netherlands.

Disadvantages of the Unitary Patent

1. 1. Limited Geographic Coverage: The Unitary Patent only covers the EU member states that have ratified the Unitary Patent Regulation and the Unified Patent Court Agreement. As of now, some major EU countries, such as Spain and Poland, have opted out of the system, meaning the Unitary Patent does not provide protection in these countries.
   2. All-or-Nothing Protection: One downside of the Unitary Patent system is that it provides all-or-nothing protection. If the patent is challenged in one of the participating countries and found invalid by the Unified Patent Court (UPC), the entire Unitary Patent can be invalidated in all participating countries, not just in the country where the challenge occurred. This represents a higher risk than the previous system of national patents.
   3. Costs for Legal Action: While the system reduces costs for obtaining and maintaining a Unitary Patent, litigation costs may still be high, particularly in cases of infringement or validity disputes, as they are handled centrally by the UPC. Businesses should carefully consider the costs and risks of enforcing a Unitary Patent through litigation.
   4. Transition Period: The Unified Patent Court system is still in its early stages. Although the court has started operations, its effectiveness will be tested over time, and some uncertainties still exist regarding the system’s long-term stability and effectiveness.
   5. No Retroactive Effect: The Unitary Patent only applies to European patents granted after the system has come into force. Patents granted before the system was implemented are not eligible for conversion into Unitary Patents.
   6. Unified Patent Court (UPC) Risk: If a patent is involved in litigation, it will be subject to the jurisdiction of the Unified Patent Court (UPC), which could result in complex and unpredictable outcomes. If the patent is invalidated in one jurisdiction, the result applies across all participating countries, unlike with national patents, where you can have different outcomes in different countries.

 Source: USPTO

UNITARY PATENT COSTS 

• Renewal / maintenance fee 
• The fee level is roughly equal to the combined renewal fees of Germany, France, the Netherlands and Italy, the four most common national validation states. 
• It’s rare to validate many countries. 
• UP renewal fee is all or nothing.