With more than 190 000 applications filed, at the European Patent Office in 2022, patents are very useful for many individual inventors and companies in Europe.
Obtaining a patent in Europe is a relatively difficult and costly process. Therefore, the patent proprietor must confirm the patent’s validity in each member state of the European Patent Convention where they wish to assert their rights.
The Unitary Patent and the Unitary Patent Court offer a simpler and more cost-effective option than the traditional European patent. Moreover, they allow for direct validation in all countries that have ratified the Unitary Patent.
What is the unitary patent and the unitary patent court system?
The unitary patent system was launched on 1 June 2023. Consequently, it allows access to a unitary patent valid in all participating countries through a single application filed with the European Patent Office (EPO).
The Unified Patent Court (UPC) includes judges from all participating European countries. It handles cases involving the validation of unitary patents, infringement, and other legal matters tied to the unitary patent system.
In the event of a lawsuit, the parties submit their complaint. This allows them to obtain further information about the steps leading to the lawsuit. After the proceedings, the Unified Patent Court will issue its decision. It will do so just like any other court would.
What are the advantages of a unitary patent?
Given that the stated aim of the unitary patent is to promote innovation by making protection more accessible, it naturally brings a number of up-front financial benefits. The advantages of the new system include a significant reduction in the cost of national validations, significantly lower translation requirements and ongoing maintenance fees.
Easier validation
A standard European patent, once granted by the European Patent Office, must still be validated in all countries where protection is sought through the national patent offices.
Fees and rules vary from country to country. In contrast, under the unitary patent system, a single act provides protection in all participating countries, eliminating the need for national validations.
Cheaper renewal
Maintenance of the unitary patent is also simplified. Specifically, only one renewal application and filing fee is needed to keep the patent active in all participating countries, rather than renewing it separately in each.
To keep costs reasonable, the EU has set the renewal fees based on four countries. These are the ones where European patents were most frequently validated in 2015: Germany, France, the UK, and the Netherlands.
Fewer translations
Along with the national validation, translations are required for each country in which coverage under the traditional European patent system is sought.
Currently, all patent applications processed in Slovakia or the Czech Republic are first translated. Most translations are, from English into Slovak or from English into Czech. In addition, patent owners often have to hire a local patent attorney.
Unlike European patents, unitary effect applications require only one translation. This applies to applications filed in German or French, or one official EU language, filed in English.
After a transitional period of six to twelve years, no translation will need to be supplied. A reimbursement system will be introduced to cover translation costs. It will help SMEs, individuals, non-profit and research organisations and universities will also be introduced.
In addition, there is no official fee for the initial application for unitary effect, although applicants will still pay the usual fees for the underlying European patent.
What are the disadvantages of a unitary patent?
Potential applicants for a unitary patent will have to weigh the cost and efficiency advantages against these disadvantages:
Central attack
First, and perhaps most importantly, there is a significant risk associated with holding a single patent right for multiple countries. If a competitor successfully challenges the patent, restrictions or invalidity will apply. This effect will cover all countries involved..
Even if the infringement claim underlying the validity challenge relates to a national patent valid in only one country, the all-or-nothing nature of the unitary patent may lead to the revocation of the challenged unitary patent in its entirety.
This differs sharply from the standard European patent. That system provides separate national patents, which keeps the individual national rights isolated from each other. A successful challenge to a traditional European patent in one country has no legal effect on the same innovation in any other country.
Loss of flexibility
In a similar vein, the comprehensiveness of unitary patent law may lead to the inability of patent attorneys to structure their portfolios on a country-by-country basis.
Under the current European patent system, patent proprietors can limit their claims or skip registration in certain Member States. As a result, this helps them avoid challenges from existing national patent holders.
The classical European patent system thus provides a higher degree of flexibility than the unitary patent. As an additional advantage, the flexibility of a national application may also reduce future renewal costs.
Territorial validity
As mentioned above, the unitary patent system has not yet been ratified by all signatories. However, the territorial scope of the unitary patent will not change once it is granted. This means that early adopters of the Unitary Patent will only obtain protection in the countries where the system is in force at the time their patents are granted, even if more signatories later ratify it.
The unitary patent and the Unified Patent Court system is clearly an innovation that will benefit different people. We recommend that you start your journey to obtain patent protection with a more in-depth search to supplement your information and with expert advice from a patent attorney.
In general, if your innovation is estimated to have good market value, a patent can be a great option to help you maximize profits.
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