European Unitary Patent Update

It has been quite a while since we checked in on the status of the European Unitary Patent, and we thought it was time for an update. For the uninitiated, the European Unitary Patent is part of the Unitary Patent Package. Here, I will shed some light on questions such as what is the Unitary Patent Package, what are the benefits of the Unitary Patent, when will the Unitary Patent finally see the light of day, and what are the Unitary Patent’s Impacts on the EPO?

What is the Unitary Patent Package?

According to the EC Europa Website:

The unitary patent package consists of three elements:

• a Regulation creating a European patent with unitary effect (or unitary patent);
• a Regulation establishing a language regime applicable to the unitary patent;
• an international agreement among Member States setting up a single and specialised patent jurisdiction (the Unified Patent Court).

The two Regulations implement enhanced cooperation in the area of the creation of unitary patent protection. 25 Member States participate in this enhanced cooperation.

Anyone looking for patent protection in the European Union (EU) still has to rely on existing provisions because the European Unitary Patent is not yet available. There are two ways to go about this:

  1. Patent seekers can submit individual national patent applications to the countries where they want patent protection.
  2. One may apply to the EPO for a European patent and then validate the granted patent in the countries where patent protection is needed.

What are the benefits of the Unitary Patent?

There are quite a few benefits of the European Unitary Patent. Once it is up and running, patent applicants will be able to get rid of many cumbersome processes. Here is a look into some of these benefits.

  • No need for additional validation. The difference between the “classic” European patent and the European Unitary Patent is that currently, once a European patent is granted, patent seekers still have to validate that patent in the specific countries where they want protection. For instance, if the patentee wants patent protection in 10 countries, then a validation request has to be separately made in all the 10 countries. Validation requirements differ by country. Under the new system, patentees would be able to get protection in the 25 EU nations that have agreed to it.
  • The new system will significantly reduce costs. Presently, the cost of obtaining patent protection in the 27 EU states may reach up to 36,000 euro, with 23,000 euro accounting for translation fees. These fees will be reduced considerably under the new system. In fact, the EC Europa Website mentions that obtaining the European unitary patent will cost around 5,000 euro. This will include the EPO’s procedural fees and the cost of translating the claims to the EPO’s two other procedural languages. However, there will be a transition period of up to 12 years. During this transition period, certain extra translations will be needed, and the cost of obtaining the European patent would be around 6,500 euro.
  • Benefit in terms of renewal fees. According to the EC Europa Website, currently, one has to pay an annual renewal fee for maintaining a patent. This fee has to be paid in each of the countries where the patentee enjoys patent protection. This fee varies from country to country. In contrast, just a single renewal fee will be charged under the unitary patent system.
  • Convenience and enforcement cost savings of having a single court for litigation of patents with unitary effect. Once the planned Unified Patent Court (UPC) is set up, it will be possible to challenge and defend unitary patents by a single court action. Existing European patents will also come under the UPC’s jurisdiction. However, as per Article 83 of the UPC, there will be a UPC’s transition period of seven years, during which conventional European patent holders will have the choice to opt out of the UPC in some cases. This option is not open for unitary patent holders.
  • Registering the unitary effect is a matter of choice. The unitary patent will offer lots of flexibility as registering for unitary effect would not be compulsory. It is an additional choice. The traditional way of applying for a patent will continue. After the patent is granted, the patent holder will decide whether or not to apply for unitary effect. There will be a month’s time to ask EPO to register the unitary effect after the grant of the patent. In short, it will be up to the patent holders to decide whether they want to follow the unitary patent approach or the traditional approach.
  • It will also stimulate research, development and investment in innovation, helping to boost EU growth.

When will the European Unitary Patent be Available?

Since the adoption of the two Regulations in December 2012, the contracting Member States are proceeding with the patent package’s third and last component – the ratification of the agreement establishing the Unified Patent Court. Availability of the European Unitary Patent is subject to the ratification of the UPC agreement by 13 member states, including the UK, France and Germany. This ratification process is expected to be complete in 2015, although some reports speculate it may stretch to 2016.  Note that the agreement will cover 25 of the 27 member states because Italy and Spain chose not to participate.

According to the Europa Website, the following 5 countries have ratified the UPC agreement:

  • Austria
  • Belgium
  • Denmark
  • France
  • Sweden

What are the Unitary Patent’s Impacts on the EPO?

Here are some of the effects that the Unitary Patent will have on the EPO:

  • According to the EPO Website, there would be new tasks for EPO. These will include administration, remission of renewal fees for unitary patents, and administering requests for unitary effect and collection.
  • There will be a unitary patents register, which will be maintained by EPO. This register will contain information legal status such as lapse or revocation, licenses, limitation, and transfers.
  • The three official languages of English, French, or German under the EPO language regime are to be used and the EPO office will administer these translations.

There will be no change in the way EPO examines patent applications.

What are your thoughts on the European Unitary Patent? Let us know your ideas in the comments section.

Patent Searches from Landon IP
This post was contributed by Pinak Shome. The Intellogist blog is provided for free by Intellogist’s parent company Landon IP, a major provider of patent searches, trademark searches, technical translations, and information retrieval services.

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