The Unitary Patent System officially entered into force as of June 1, 2023, following a considerable anticipatory period. The long awaited system henceforth provides for the possibility of the granting of a Unitary Patent (UP), specifically a European patent which has a unitary effect in up to 25 EU member states, intending to create a uniform, specialized, and efficient framework for European patent litigation. These countries participate in enhanced cooperation with the European Patent Office (EPO) to bring about the UPC system.
As of the aforementioned date, the Unified Patent Court (UPC) runs alongside the UP System, facilitating the litigation of European patents, inclusive of UP's. The UPC will operate within the 17 countries that have already ratified the necessary Agreements, namely Austria, Belgium, Bulgaria, Denmark, Germany, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden.
Procedure
Unitary Patents can be obtained utilizing the existing patent application process via the EPO, with applicants obliged to first obtain a European patent before opting for the UP route of protection.
Applications for UP's can be prosecuted in any of the official languages of the EPO, namely English, German or French. Once a European patent has been granted, the right owner must file a "request for unitary effect" within one month following the date of publication of the mention of the grant of the European patent in the European Patent Bulletin in order to obtain a UP.
As such, applicants are able to choose between three options regarding their patent registration. Firstly, applicants can opt for the registration of a UP covering any or all of the participating UPC member states if they so wish.
A second option with regard to UP protection allows applicants to receive a UP whilst simultaneously electing for validations of the patent in countries which are not participating jurisdictions or have yet to ratify the necessary UP System legislation.
Alternatively, applicants can "opt out" of the unitary system, meaning that their European patent will be validated in individual countries in the usual manner as before the enforcement of the UPC system.
Once opted out, the UPC will have no jurisdiction over European patent application, patent registration or supplementary protection certificate pertaining to a European patent. This opt-out option is only applicable for applicants in relation to proceedings that have not yet been heard before the UPC.
A granted UP constitutes a single, indivisible right that covers all UPC member states collectively, as opposed to the previous option of a European patent obtained under the European Patent Convention which comprises a bundle of individual, separate national rights valid in each designated territory respectively. The UP system also allows for a centralized renewal fee and administration system, facilitating a potentially more efficient method of European patent filing and maintenance.
Advantages of UPC filing
An applicant's choice to utilize the UP System can depend on many factors, including their overall patent strategy, means, and portfolio. The system can, however, provide the potential for an advantageous edge over the alternative routes of patent protection across Europe, such as EP's or national patent registrations in individual states.
For instance, whilst the EPO examines European patent applications in a centralized manner, which can prove more cost effective than filing in individual jurisdictions simultaneously, granted European patents must still be validated and maintained in each respective designated state separately. This process can prove costly and tumultuous, with validation and maintenance requirements, as well as a variety of fees, differing between jurisdictions.
The Unitary Patent System, in contrast, eliminates the potential complexities outlined above by facilitating a core system which handles the obtainment, maintenance, and management of UP's in one place. This provides for a more simplified and cost effective route of patent protection across European UPC member states by way of a Unitary Patent.
Further, instead of applicants having to validate their patents in each individual European state in which protection is sought, the UP System allows for the obtainment of unitary protection in multiple states simultaneously via a single request to the EPO.
Moreover, the UPC, which runs alongside the UP System, is set to provide for a centralized method of litigation for not only EP's but UP's as well. This, in turn, is likely to assist with increasing legal certainty and consistency, as it allows for litigation to be conducted in a common court covering all UP System member states, as opposed to the previous method of rights owners having to litigate in separate jurisdictions respectively.
Another advantage lies in that the UP system eliminates the need for applicants to submit individual translations in each jurisdiction in which patent protection is sought separately, providing for a more efficient process.
If you have any queries regarding the Unitary Patent System, or wish to enquire as to the filing of a UP or patent in Europe, please visit our website or contact us via our messaging system here