First overview: The upcoming unitary patent

Erste Übersicht: Das demnächst kommende Einheitspatent

Holders of granted European patents and applicants for European patent applications will have to deal with patent strategy considerations by the end of 2022 or at the latest at the beginning of 2023. This is because the unitary patent is expected to be introduced at the beginning of 2023 and the Unified Patent Court (UPC) will begin its work.

In future, anyone who is granted a European patent by the European Patent Office after successfully completing the examination procedure will also have the option of opting for a unitary patent, which will apply to a large number of countries in the European Union. As things stand at present, the following European Union states belong to the unitary patent system:

  • Belgium,
  • Bulgaria,
  • Denmark,
  • Germany,
  • Estonia,
  • Finland,
  • France,
  • Italy
  • Latvia,
  • Lithuania
  • Luxembourg,
  • Malta,
  • Netherlands,
  • Austria,
  • Portugal,
  • Sweden.

The following countries have not currently ratified the UPC Convention:

  • Cyprus,
  • Czech Republic,
  • Greece,
  • Hungary,
  • Ireland,
  • Poland,
  • Romania,
  • Slovakia.

It is expected that these states will become participating member states in the course of the next few years.

Spain and Croatia are not participating, but it is open to these states to decide to participate at a later stage.

How to obtain a unitary patent?

The basis for the unitary patent is a European patent granted by the European Patent Office in the traditional way with the known application and examination procedures. At the time of patent grant, the patent proprietor may request to obtain a patent with unitary effect for the participating member states (see above). If the patent proprietor is interested in protection in non-participating member states or in states of the European Patent Convention which do not belong to the European Union, the necessary validation steps must still be taken in these states. Alternatively, the patent proprietor can continue to obtain a bundle patent, i.e. a bundle of national patents, as before.

In this case, the request for unitary effect must be filed with the European Patent Office within one month from the date of grant (publication of the notice of grant). This request can be filed by us as professional representatives (European Patent Attorneys) before the European Patent Office.

Unfortunately, the requirement to file a translation of the text of the European patent is not completely eliminated during a transitional period of maximum 12 years. For example, the request for unitary effect must be accompanied by a translation of the text of the European patent into English if the language of proceedings of the granted European patent is German or French.

The European Patent Office has been entrusted with the maintenance of the "Register of Unitary Patent Protection" in which the unitary effect, any limitations, licenses, transfers, revocations or any cancellation of a European patent with unitary effect and information on the payment of renewal fees are recorded.

Further blog posts will address important and interesting aspects related to the unitary patent and the European Patent Court, in particular the possibility of opting out existing European patents.

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