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 that requires the patent proprietor to confirm the validity of his patent in each of the member states of the European Patent Convention in which he wishes to assert his rights.
Compared to the traditional European patent, the Unitary Patent and the Unitary Patent Court provide a simple, relatively inexpensive and direct means of validating a patent in all countries that have ratified the Unitary Patent.
What is the unitary patent and the unitary patent court system?
The unitary patent system, which was launched on 1 June 2023, will allow 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) is a court comprising judges from all participating European countries who preside over cases relating to the validation of unitary patents, infringement and other legal matters related to the unitary patent system.
In the event of a lawsuit, the parties to the dispute submit their complaint to obtain further information about the steps leading to the lawsuit. After participating in the proceedings, the Unified Patent Court will issue its decision on the case as 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.
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.
Maintenance of the unitary patent is also simplified as a single renewal application and associated filing fee is required to maintain the patent in all participating countries at each renewal period, rather than separate renewals in each country.
In order to keep costs reasonable, the EU has set renewal fees at the sum of the four countries where European patents were most frequently validated in 2015, namely Germany, France, the UK and the Netherlands.
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, for example, from English into Slovak or from English into Czech. In addition, patent owners often have to hire a local patent attorney.
Unlike the numerous translations required for the validation of European patents, only one translation is required for the application for unitary effect: (for applications filed in German or French) or one official EU language (for applications filed in English).
After a transitional period of six to twelve years, no translation will need to be supplied. A system of reimbursement to cover translation costs for 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:
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, the restriction or invalidity will apply in 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 is in stark contrast to the standard European patent, which provides a set of separate national patents, thus isolating the individual national rights 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 refrain from applying for registration in certain Member States in order to avoid being challenged by an existing national patent proprietor. 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.
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.