Unitary Patent system - guide

01 June 2023
by eub2 -- last modified 01 June 2023

The Unitary Patent system launched on 1 June 2023, with the aim of making it simpler and easier for companies to protect their innovations in Europe and capitalise on their intellectual property.

1. What is the Unitary Patent system?

The Unitary Patent system will consist of two distinct pillars. First, the Unitary Patent, a single patent that provides uniform protection across participating Member States, simplifying and streamlining the patent application and enforcement processes. It may be obtained by requesting unitary effect before the European Patent Office (EPO), after a European patent has been granted under the existing rules of the European Patent Convention.  Second, the new Unified Patent Court ('UPC') – based on an international the 'UPC Agreement'. The new Court will enable centralised litigation over the Unitary Patents. The Court will also have jurisdiction over non-unitary European patents, of which hundreds of thousands are already in force.

2. How many Member States will the system cover?

At its start, the new system will cover 17 Member States representing ~80% of the EU's GDP. The following Member States are part of the system: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden.

3. Why is the Unitary Patent system a major achievement?

The Unitary Patent system is a historic achievement, which took decades to materialise. Since 1970s, several attempts were made by the Member States to establish a community patent, which, however, were not successful.

In 2000, the Commission made the first proposals for what became the two current EU Regulations on which the Unitary Patent system is based. To overcome the disagreements in the negotiations of these proposals, in 2011 it was considered necessary to resort to the enhanced cooperation mechanism. Enhanced cooperation is a procedure where a minimum of 9 EU Member States are allowed to set up advanced integration or cooperation in a particular field within the EU, when it has become clear that the EU as a whole cannot achieve the goals of such cooperation within a reasonable period.

On that basis, the two Regulations on Unitary Patent protection were adopted in 2012. They will apply from 1 June 2023. Currently all Member States except for Spain and Croatia, are participating in that enhanced cooperation.

The Unified Patent Court (UPC) is established by an international agreement between the participating EU Member States (the 'Agreement on a Unified Patent Court', or 'UPC Agreement'). The preparation of the UPC Agreement took place in parallel to the work on the Unitary Patent. The Agreement was signed in 2013, but it is only after a decade that all the necessary ratifications (that is at least 13 ratifications, including by Germany, France and Italy) were completed, enabling its entry into force on 1 June 2023. Out of the 25 Member States participating in the enhanced cooperation, 17 have now ratified the UPC Agreement; the remaining 8 may do so in the future. For now, nothing changes for them.

4. How can a patent applicant obtain a Unitary Patent?

The first step is to file a European patent application, which will be searched and examined by the European Patent Office (EPO) according to the provisions of the European Patent Convention, which are already into force. The three key criteria for obtaining a patent are novelty, inventive step and industrial applicability. Then, within one month from the grant of a European patent, the patent holder will be able to request unitary effect before the EPO, which will result in Unitary Patent protection for the participating Member States.

Where protection is additionally sought in non-participating or non-EU countries, the same European patent will need to be validated according to the respective national requirements, as it is the case today.

5. In what languages can one apply for the Unitary Patent?

The language regime of the Unitary Patent is that of the European Patent Office. Its 3 official languages are English, French and German. No translations will be required at a national level once a European patent is granted and unitary effect is attributed to it.

6. What are the benefits for EU companies and innovators?

A key advantage of the Unitary Patent is that, based on a single request filed before the EPO, it will immediately be valid in all participating 17 Member States. In addition, maintaining Unitary Patent protection only requires a single annual renewal fee to be paid centrally to the EPO. By contrast, the non-unitary European patents require various national validation formalities, such as translation in a national language, as well as the payment of annual renewal fees in each country where protection is sought. The cost of maintaining a Unitary Patent for an average lifetime of a patent of 10 years will amount to € 5000, up to six times lower than that of equivalent protection today.

Centralised litigation before the new Unified Patent Court (UPC) will be more cost-effective, less burdensome and more legally certain than conducting parallel proceedings before several national courts. Moreover, while the UPC will have exclusive competence regarding litigation based on Unitary Patents, it will also be able to handle litigation regarding non-unitary European patents, to the extent that they have not been 'opted-out' of the competence of the UPC during the transitional period.

All these benefits will come to the advantage not only of European businesses and innovators, but also to non-European companies, which until now considered that patenting in the EU was complex and costly. Despite the multi-national nature of the EU, the Unified Patent system now offers a genuine one-stop shop for patent protection and enforcement. It catches up in a very effective manner with the patent systems of our main trading partners, such as the USA or Japan.

7. What are the benefits for SMEs?

First, like other applicants, SMEs will benefit from the strong reduction of costs and administrative burden, as regards both patent protection and enforcement, and from increased legal certainty thanks to centralised litigation before the Unified Patent Court. This cost reduction and simplification is particularly welcome for SMEs having limited resources to devote to intellectual property matters.

A number of measures are specifically applicable to SMEs, including:

• A compensation intended to alleviate translation costs, initially set at €500, is available to SMEs established in the EU, holding a unitary patent, where the initial European patent application was filed in an official EU language other than English, French or German. This compensation comes on top of existing reductions in the EPO's filing and examination fees which are already available whenever a European patent application or its request for examination are filed in a language of one of the 39 countries member of the European Patent Organisation.
• The level of the renewal fees in respect of Unitary Patents, and of UPC fees, will be reviewed periodically, with a focus on the needs of SMEs.
• Micro- and small enterprises are entitled to a 40% reduction on all UPC fees. 

In addition, a natural person, for instance an individual inventor, who is unable to meet the costs of the proceedings before the UPC may apply for legal aid.

8. How will the Unified Patent Court work?

The Unified Patent Court (UPC) offers a single, specialised patent jurisdiction. It consists of a Court of First Instance and a Court of Appeal. The Court of First Instance is composed of a central division (based in Paris and Munich), as well as several local and regional divisions. The Court of Appeal is based in Luxembourg.

The UPC will handle litigation relating to the new Unitary Patents, for which it has exclusive competence, and also relating to non-unitary European patents (of which hundreds of thousands are already in force). However, the latter may be opted out of the competence of the UPC during a transitional period of at least 7 years; if this is done, litigation may only be initiated before national courts. The UPC has exclusive competence in respect of civil litigation (especially infringement actions) on matters relating to European patents with or without unitary effect, and related supplementary protection certificates.

UPC rulings will have effect in the territory of those Member States having ratified the UPC Agreement (17 initially). The UPC will also have exclusive competence in respect of actions concerning decisions of the European Patent Office in carrying out the tasks of administering the Unitary Patent.

9. How is the Commission involved in the management of the Unitary Patent system?

The Commission is an active observer in the main governance bodies of the European Patent Organisation (EPO) and the Unified Patent Court (UPC) and will closely monitor the functioning of the Unitary Patent system.

Moreover, the Commission will further ensure that, where appropriate, new EU legislation in the area of patents is integrated into the European Patent Convention on which the EPO relies.

More broadly, a number of recent initiatives, including the proposed new Regulations on standard-essential patents, compulsory licensing of patents in crisis situations, and supplementary protection certificates, will reinforce the role of EU institutions in shaping our patenting framework – as was done long ago for trademarks and designs.

Factsheet on the Unitary Patent

Source: European Commission