The Unitary Patent and the Agreement on a Unified Patent Court - Complementing and Strengthening Patent Protection in Europe

Patent protection in Europe is about to change fundamentally this year. While inventions in Europe have so far been protected by national patents or European patents examined and granted centrally by the European Patent Office (EPO), the unitary patent is expected to be added as a new alternative for patent protection in Europe in the second half of this year with the entry into force of the Agreement on a Unified Patent Court (EPC).

The unitary patent is a European patent with uniform effect for all EU member states participating in the agreement. This means that the unitary patent guarantees unitary patent protection to its owner in these states and that an alleged patent infringement of the unitary patent or its validity can be decided in a single court procedure before the newly established Unified Patent Court (EPG) for all these states. The costs of legal proceedings can thus be concentrated on a single procedure. At the same time, however, there is a risk that the unitary patent may be restricted or destroyed as a result of a central attack with effect for all participating Member States.

In order to obtain a unitary patent, a European patent application must be filed with the European Patent Office as before. This will continue to be reviewed centrally by the EPO. In contrast to the classic European patent (EP), which, after granting as a bundle patent, breaks down into national patents with different regulations and associated high administrative costs, the unitary patent is granted after the EP has been granted through an application for unitary effect at the EPO and is managed centrally there. Annual fees for the unitary patent must therefore be paid centrally to the EPO. In terms of their amount, these correspond essentially to the national annual fees that would be charged for the four contracting states in which the EP is most frequently validated. In addition, after a transitional period of currently six years, translations will no longer be required when applying for a unitary patent. This results in reduced administrative costs for the holder of the unitary patent, meaning that significantly larger patent-protected markets will be available to them with the same budget.

So far, the EPC has been ratified in the 17 EU Member States Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden, including most recently in Germany. As soon as Germany has deposited its instrument of ratification, the EPC will enter into force no later than four months thereafter. This is expected to be the case in autumn 2022. Other EU Member States could join the Convention through their ratification, but the territorial effect of existing Unitary Patents will not be extended retrospectively, meaning that there will be several generations of Unitary Patents.

The unitary patent regulations also have a retroactive effect on existing European patents. Holders of European patents who wish to continue relying on national jurisdiction in place of the new European jurisdiction before the EPG can submit a corresponding statement, the so-called “opt-out”. Without an opt-out, European patents in the participating EU member states would in future be subject to the European jurisdiction of the EPG, which involves a higher risk of legal costs compared to national court proceedings. Medium-sized companies in particular should therefore seek talks with their patent attorney before the EPC comes into force in order to adapt their patent strategy to the new unitary patent system in good time and take necessary measures if necessary.