The Unitary Patent: A Background

May 19, 2017

Since 2010 Europe has been working hard on one of the largest changes in European patent law of the past decennia, the introduction of the unitary patent.

While the current system requires validation of a patent in individual member states, the unitary patent makes it possible to validate a patent in all participating member states at once and regulate it through a central legal system. The hope is that this system will make patent procedure less unpredictable, cheaper and faster. The envisioned system offers advantages but also disadvantages in terms of costs, efficiency and protection of the patent.

What changes exactly?
Currently a European patent, after it has been granted, has to be separately validated in all desired member states. This entails additional costs, especially the translation costs made to have the patent validated within a specific country (The EU knows 24 official languages in total). After a patent has been validated, to keep the invention protected, a maintenance fee has to be paid. Within the current system also this has to be paid in each individual country. Finally, the addressing of an alleged infringement has to be litigated separately in each country the patent has been validated.

With the Unitary Patent the patent application is still submitted at the European Patent Office (EPO). Only now, after it has been granted, the patent is immediately valid in all participating member states. For those countries not participating in the Unitary Patent, separate validation remains necessary. A central legal system, the Unified Patent Court, will be founded to exclusively focus on Unitary Patents and European patent law. Disputes would no longer have to be resolved within national courts.

However, this also means that, when the Unified Patent Court concludes that the rights of a patent are invalid, this is directly applicable to all participating member states. With one ruling the entire validity of a patent could be lost in almost all of Europe.

The costs in the preliminary stages remain the same under the unitary patent. Cost savings are mainly in the translations costs after validation by the EPO. After the patent has been granted it no longer needs to be translated. The specific maintenance fee within the new system still has to be determined, but will most probably be equal to the renewal fees due in the four countries where European patents were most often validated in 2015: Germany, France, United Kingdom and the Netherlands.

This comes down to an annual fee that starts at 35 euro for the second year up to 4855 euro in the 20th year.

As of when is this possible?
The official start date of the Unitary Patent keeps being pushed back, waiting for the UK and Germany to ratify. The EPO has recently announced that the aim of starting in December of 2017 is no longer feasible. Pending the outcomes of Brexit and a court case in Germany, they don’t dare set a new date at this stage.

Almost all member states (25 of 28) already signed for participating in 2013. Now that Spain’s objections have been rejected, what remains is the ratification of the Unified Patent Court. When 13 countries, amongst which at least Germany, French and England, have ratified the treaty it can go into effect within these countries. Of these three, only France has ratified the treaty so far (2014). The number of 13 has, however been reached.

A complete overview of which countries have ratified the agreement, and when, can be found on the website of the European Council.

Want to have more background on the Unitary Patent? Read our article on the Unitary Patent Guide of the EPO, or find the entire guide here.