After 10 years in the making, it would appear the biggest development in European patent law is finally upon us. The European Union’s ‘Unitary Patent Package’ legislation sees the creation of a single patent covering all participating EU member states. Alongside the Unitary Patent comes the creation of the dedicated Unified Patent Court (UPC) who will have jurisdiction over patents in the participating countries. The idea is that this will result in a more efficient, streamlined patent system, meaning that the path to broad patent protection will become significantly smoother and, hopefully, cheaper.
The Agreement on a Unified Patent Court was signed by 24 EU member states in February 2013 but a series of challenges, including Brexit, delayed the establishment of the UPC as an international organisation until January 2022. This allowed the preparatory phase to begin, with Germany’s long awaited ratification on 17th February 2023 being the last piece of the puzzle needed to trigger the final run-up period. This means that the Unitary Patent – and the jurisdiction of the UPC – will at long last become a reality on 1st June 2023, over a decade since the signing of the agreement.
So, what does this mean for Europe?
The UPC will revolutionize European patent enforcement and effect international companies that hold European patents or conduct business in Europe. Currently, patents are granted centrally by the European Patent Office (EPO) but derive a bundle of national patents, which then have to be enforced separately on a country-by-country basis often resulting in increased costs and delays.
Unitary patents will be granted by the EPO in the same way as European patents, but will not require separate validation in each individual member state, meaning lower costs and faster decisions for patent owners wishing to have patent protection across a number of European countries. This leads to increased trade opportunities across the participating countries, making it ideal for companies with a market that extends across Europe.
What does this mean for the UK?
Unitary Patents will not extend automatically to the UK, as the UK is now longer an EU member state and, as such, does not fall under the scope of the legislation. However, states that are not party to the new system can still be designated alongside the UP member states, as membership of the UPC is based on the European Patent Convention, which extends to non-EU member states.
This means that designating a Unitary patent and a UK patent simultaneously may well be the ideal choice for UK based companies that also have a strong European market and want to protect their patents across a wider market. UK-based European Patent Attorneys (EPAs) will still have the right to represent clients before the UPC, so a UK-based legal team can be utilised in cases of UPC infringement.
How do you apply for a Unitary Patent?
You can obtain a Unitary Patent from the EPO via the existing application procedure. If granted, applications will have three options to choose from:
- Validate the European Patent in the usual manner, choosing individual countries where protection is desired;
- Elect to have a Unitary Patent, covering the participating EU Member States; or
- Elect to have a Unitary Patent, together with validations (or extensions) for countries which are not participating in the new system, such as the UK.
Furthermore, if you’re a citizen in a UP Member State, then when the UPC becomes operational, unless you choose to opt out, all European patents will fall under the UPC’s jurisdiction.
Conclusions
The arrival of the Unitary Patent in June of this year brings with it multiple benefits. Various areas will see a reduction in costs such as reduced translation requirements, reduced renewal fees, and compensation schemes for SMEs. The broad coverage of at least 17 countries will provide consistency as the Unitary Patent will always fall under the jurisdiction of the UPC.
If you are considering applying for a patent in Europe, then a Unitary Patent may be the way forward due to the lower costs, faster response and wider coverage offered.
If you have any queries on the topic covered in this article, or any other aspect of Commercial and IP law, please do not hesitate to contact us at 029 2034 5511 or commercial@berrysmith.com