How a Unitary Patent and a Unified Patent Court will change your EU patent strategy and what you can do now to prepare

19 September 2014

The Unitary Patent system, including the Unified Patent Court, is not yet operational. The target date of early 2015 has recently been acknowledged as being overly ambitious; the end of 2015 is now said to be the earliest that can be achieved. Despite the delay, patent proprietors and applicants should be thinking now about their strategy for meeting the challenge created by this new intellectual property right. 

Introduction

The introduction of the Unitary Patent and the Unified Patent Court is the biggest change in the European patent landscape since the European Patent Convention entered into force in October 1977. 

The new Unitary Patent is a new intellectual property right. It is intended that it will sweep away the disadvantages of the present European Patent system; a proprietor of a Unitary Patent will only have to pay one renewal fee and translate the text into, at most, one additional language (other than the language of the European Patent Office procedure) for the invention to be granted in the 24 participating EU Member States.  The Unitary Patent will, in all respects, be a European patent for purposes of filing and prosecution, but within 30 days after grant by the European Patent Office, the patentee will have the option to designate it as having unitary effect.  In such a case the Unitary Patent will provide uniform patent protection and equal legal effect in all the participating Member States.

A Unitary Patent will be enforced through the Unified Patent Court. This court is a real novelty; it is the first Court of First Instance to have jurisdiction over 25 sovereign nation states. It is an international court set up by treaty for the enforcement of both traditional European Patents and Unitary Patents. For traditional European patents, the court can decide in a single decision for all those countries where the European Patent is actually registered, unless the patent has been "opted out" of the system by the patentee. For the Unitary Patent, it means that the court has exclusive jurisdiction for all 25 participating Member States. 

This is to be compared to the current position where patents in Europe are national rights for all practical purposes. Although, through the European Patent Office, there is one system to apply for a patent for the whole of Europe, after grant European Patents need to be registered at national level, which involves recurring fees per country and enforcement has to be done on a country-by-country basis.