Unitary Patent or European Patent?

November 1, 2017

If the Unitary Patent is implemented, when would it be the better option for a client? And when is it best to stick with European Patent? Olle Bäcklund, CEO of Direct Validation, discusses the pro’s and con’s and introduces a tool that allows you to easily calculate the costs of the two systems.

Guest blog by: Olle Bäcklund

For several decades the option of a European Patent has been discussed. The present idea, the Unitary Patent, is closer to be realized than any of the earlier attempts. Still, it will for a foreseeable time it never be a question of choosing between a Unitary Patent OR traditional EP-validation. As the first can only cover up to 25 countries, while the European Patent covers 38 and can be extended to more than forty countries. Therefore, we will always see a mix of the two systems.

Outdated arguments
The European IP world has changed. The average number of countries where granted European Patents are validated has sunk to between three and four. Only forty per cent of patens are validated in vive countries, fifty present in three countries.

So why do we keep on hearing arguments such as “There is €20.000 to be saved for every EP validation.” Sure this is true, if you validate in all member states. Which is only done in one per cent of all grants.

The finance
Let’s have a look at statistics and money. The three most common states to validate a European Patent in are Germany, France and Great Britain. They are the Premier League.

Fourth and fifth are Italy and Spain, then come Switzerland and the Netherlands. (It is good to remember that the UP annuities are based on “True 4”, i.e. the annuities of DE FR GB NL)

To validate in DE FR GB BE and CH is free of charge. The validation is automatic and costless unless you invent some costs like asking a local patent attorney to register as address for service even. It means that it all boils down to the annuities.

Only one per cent of all patents are validated in all member states


Calculator

At Direct Validation we build a free Unitary Patent Calculator to show objectively the life time comparison between European Patent validations and the Unitary Patent.

The idea is to take into consideration the Unitary Patent, validations and annuities including the possibility to stop paying annuities on an individual basis after European Patent validations.

 

Here are some examples:
Let’s presume a European Patent application from 2014 with twenty pages of description, two pages with 15 claims and three pages of drawings. What will the life time cost (validations, translations, annuities etc.) be if we validate in the three most common states (DE FR GB)?

Choosing the Unitary Patent will mean nearly doubling the cost (+ 89%). Dropping one state (FR as an example) ten years before the maximum life time will make the UP way some 142 per cent more expensive.


Fig. 1 Protection in DE FR GB during the full life time.

Let’s include no. 4 and 5 on the list (Italy and Spain). It will still be 35 per cent more expensive than the Unitary Patent, dropping IT and ES ten years before maximum life will make it worse: 65 per cent more expensive than the UP.

When will the two systems reach break-even? Seeking coverage also in the Netherlands, Belgium and Switzerland, a total of eight states, finally makes traditional European Patent validations three per cent more expensive. If you keep all of them alive for their maximum lifetime. Only twenty – thirty per cent of patents are validated in eight countries today.

Conclusion
Seeking coverage in three to five states, traditional European Patent validations are the best choice. It additionally spreads the risk in case you are attacked by competitors. Trusting the Unified Patent Court and looking for protection in many states, go for the Unitary Patent.

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