With the introduction of the Unitary Patent, the European Union has taken a significant step toward harmonising the patent system in Europe. Of course, effective means of protection already existed before the Unitary Patent. However, the European Unitary Patent makes it considerably easier for inventors and companies to obtain uniform protection for their inventions.
Table of contents
- What is a Unitary Patent?
- What is the Unified Patent Court?
- How can a Unitary Patent be applied for?
- How much does the Unitary Patent cost?
- What are the advantages and disadvantages of the Unitary Patent?
- RGTH: Expert advice on the Unitary Patent
What is a Unitary Patent?
The Unitary Patent (UP) is a special form of patent protection that is valid simultaneously in several EU Member States, without the need to apply for and maintain patent protection separately in each country. Inventors and companies applying for unitary protection obtain a single patent that has effect in all countries covered by the protection.
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European patent with unitary effect as the predecessor of the Unitary Patent
Since 1977, inventors and innovative companies have been able to obtain European patents (EP) to protect their inventions beyond national borders. Thanks to a centralised grant procedure, they were spared the need to apply for patent protection separately in each EU Member State. Instead, following an examination of patentability, the European Patent Office (EPO) granted the European patent.
- Advantage: Inventors and companies do not need to apply individually to the national patent offices of the countries in which protection is sought.
- Disadvantage: The European patent must be validated and maintained separately in each country for which protection is requested.
This means that if, for example, a patent is challenged, transferred, enforced, or revoked in Italy, this has no effect on the validity of the patent in the other European countries for which protection was obtained via the EPO. In addition to significant administrative effort, this form of patent management also entails high costs for patent proprietors—for example for translations into national languages, validation fees, or patent attorney costs.
The EU Unitary Patent, officially known as the “European patent with unitary effect”, is intended to remedy this situation.
In which countries does the EU Unitary Patent apply?
The European Unitary Patent, often referred to colloquially as the EU patent, entered into force in June 2023 and is intended in the long term to extend to a total of 25 EU Member States. At present, however, it applies only in 17 EU Member States that support enhanced cooperation in the unitary patent system and have ratified the Agreement on a Unified Patent Court (UPCA). These include:
- Belgium
- Bulgaria
- Denmark
- Germany
- Estonia
- Finland
- France
- Italy
- Latvia
- Lithuania
- Luxembourg
- Malta
- Netherlands
- Austria
- Portugal
- Sweden
- Slovenia
In which countries must patent protection be applied for separately?
If patent proprietors require protection in European countries that participate in enhanced cooperation but have not yet ratified the Agreement, the European patent must be validated separately with the national authorities. These countries include Greece, Ireland, Poland, Romania, Slovakia, the Czech Republic, Hungary, and Cyprus.
In addition, the EU Unitary Patent is not valid in the United Kingdom, Croatia, Norway, Switzerland, Spain, or Turkey. Nor does it cover patent protection in countries outside the EU. Separate national applications must be filed for each of these jurisdictions.
Good to know: Since the geographical scope of the Unitary Patent remains unchanged throughout its entire term, it cannot be extended to countries that ratify the UPCA at a later stage. For these latecomers, separate protection must also be applied for.
What is the Unified Patent Court?
Questions concerning the validity or infringement of Unitary Patents fall within the jurisdiction of the Unified Patent Court (UPC). This is a supranational court established by the EU Member States that signed the international agreement introducing the Unitary Patent.
Patent proprietors seeking to enforce their rights under Unitary Patents, as well as third parties seeking revocation, bring their cases before this court. The introduction of the UPC spares patent proprietors from litigating in multiple countries. The Court issues decisions that apply uniformly in all participating states, thereby increasing legal certainty. Court proceedings become simpler, faster, and more efficient.
How can a Unitary Patent be applied for?
- Step 1: To obtain a Unitary Patent, inventors and companies must first apply for a European patent with the European Patent Office (EPO).
- Step 2: After the patent has been granted under the European Patent Convention (EPC), the patent proprietor files a “request for unitary effect”.
- This request must cover all currently 17 participating states and may not contain different claims for different Member States.
- The request must be filed no later than one month after publication of the grant of the European patent in the European Patent Bulletin.
- Step 3: The request—submitted either in writing or online—requires a translation of the European patent. If the language of proceedings is German, a full translation into English and French is required.
- Step 4: Once successfully filed, the Unitary Patent takes effect uniformly in all participating European states.
Excluding UPC jurisdiction: the opt-out declaration
The Unitary Patent is an additional option designed to simplify patent protection and harmonise case law in participating European states. While this offers many advantages, it can also be a disadvantage if a patent is challenged and declared invalid, as protection would then be lost in all 17 participating states.
To avoid the exclusive jurisdiction of the UPC, patent proprietors may file an opt-out declaration for European patents during a transitional period of seven years. This means that protection remains a bundle of national patents, each subject to national courts. This prevents third parties from challenging a patent across all states in a single UPC action.
The opt-out can only be declared if no proceedings are pending and applies for the entire term of the patent. It can be reversed only once by filing an opt-in declaration.
How much does the Unitary Patent cost?
Unitary Patents are subject to an annual renewal fee, paid centrally in euros to the European Patent Office. These costs are generally lower than for European patents validated nationally, as additional validation and maintenance costs are avoided.
For the second year:
- Unitary Patent: €35 for protection in all 17 participating states.
- European patent (17 states): €146 in total.
- European patent (25 states): €223 in total.
For the maximum term of 20 years:
- Unitary Patent: Total renewal fees of €35,555.
- European patent (17 states): €116,688.
- European patent (25 states): €161,305.
What are the advantages and disadvantages of the Unitary Patent?
The main advantages of the Unitary Patent are reduced administrative effort and lower costs. With a single request, protection can be extended to 17 states, with renewal fees paid centrally in euros.
At the same time, the Unified Patent Court ensures harmonised decisions with effect across all participating states. However, this also means that a single revocation action can invalidate a patent in all states, unless an opt-out has been declared.
RGTH: Expert advice on the Unitary Patent
RGTH’s patent attorneys advise patent proprietors on all aspects of patent filing and help develop a tailored patent strategy. Whether in chemistry, mechanical engineering, software, or biotechnology, we represent your interests before the Unified Patent Court.