Apply for a Patent in the EU with the Unitary Patent System
Discover how to apply for a patent in the entire European Union with the Unitary Patent system
The European Union Unitary Patent, which will take effect on 1 June 2023, is a European patent system that offers the possibility to obtain protection for your invention with a single granted patent in the EU countries that have joined the Unitary Patent system. At the start of the system, these are the following 17 EU countries: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden.
Currently, if someone wants patent protection across several EU countries, the applicant must apply for individual national patents in each country. This can be time-consuming and costly, as patent applications and legal proceedings must be conducted separately in each country. The EU Unitary Patent system aims to streamline this process by providing a single, unitary patent that will be valid across all participating EU member states.
At the start, it was such a great idea: applying for a patent in all EU countries at the same time with one procedure. And it was called the Unitary Patent. After all, it was - and still is - the case that with the classic European route for applying for a patent, the procedure for submitting the application goes through the European Patent Office (EPO). That in itself is well arranged, but then it really starts.
The applicant must then make a choice in which countries in Europe the patent will be continued, with things being arranged slightly differently in each country. The applicant thus comes into possession of a bundle of patents, which is why this is referred to as a bundle patent.
Translations are often required and, in each country, you have to pay for maintaining the patent. In addition, any infringement of the patent in the relevant country must be subject to litigation. The idea of the Unitary Patent was that all this is no longer necessary and that with one procedure the invention is protected on the entire European market.
After all, that was the big difference with a patent in America. There it is also possible to protect an invention on the entire American market with one patent. And in Europe, protection must be sought in all countries individually, which entails much more hassle and higher costs.
The Unitary Patent is of course a nice idea, but it has all the time not been introduced because the plan had a number of problems. What was the downside? The classic European patent can be registered in a total of 38 countries. This concerns the countries that are part of the European Union as well as a number of others such as Norway, Switzerland and Turkey. On the contrary, the Unitary Patent will only be valid in countries that participate in the treaty, which are therefore not all EU Member States. Because although a large number of countries have already ratified the treaty, a number of countries are not participating, for example, Poland and Spain.
THE DELIVERY OF THE UNITARY PATENT TOOK MANY YEARS
The discussion about a European patent has been going on for a long time because already in 2011 (!) the author of this web text has written on a previous webpage about the delay of the unitary patent. In those days in particular Spain and Italy caused problems. They only wanted to allow the publication of the patent in English or in the language of their own country. They feared that their internal market would collapse if the current system were changed. It turned out that a majority of the member states were fed up with the hassle and in a meeting, where emotions were running high, the decision was made to a - so-called - enhanced cooperation. This means that certain rules only would apply in those countries that wanted to and, furthermore, that some EU countries will participate in the Unitary Patent and others will not.
In addition, a legal objection procedure against the introduction was still pending in Germany, but this country has now also ratified the treaty. After that, it became quite a hassle with Brexit, but the UK ultimately does not participate. Anyway, the Unitary Patent will now be definitively introduced on 1 June 2023.
With the Unitary Patent, it is not necessary to have the patent application tested separately in each Member State. The patent automatically provides protection in all participating EU countries at the time of approval. In addition, a single rate applies to the Unitary Patent. If a patent is infringed or if you want to challenge a competitor's patent, you can turn to one body: the Unified Patent Court (UPC).
Since the UPC was introduced, already existing national approvals for classic European patents in countries that have ratified it apply to both the UPC and the national courts. This will automatically be the case unless the patent holder chooses via an opt-out not to apply to the UPC. The greatest risk for the patent holder under the UPC system is that another party may submit a request to declare the patent to be invalid by the UPC. This risk can be prevented by actively withdrawing the authority of the UPC. As a European patent holder, you must arrange this yourself. So, you can submit a statement to exclude your application or European patent from the UPC agreement (this is called the opt-out).
This can be done at least three months before the agreement takes effect, but also during the transitional period, as long as no procedure has been initiated at the UPC by a third party. Submitting an opt-out prior to the installation of the UPC will prevent a third party from filing an invalidity claim once the UPC takes effect. This "sunrise" period started on March 1, 2023, after Germany also ratified the UPC. The opt-out remains valid as long as the patent is in effect, even after the transitional period has been set. You can cancel the opt-out at any time, as long as no proceedings have been initiated before a national court. However, you can only cancel the opt-out once and this is then final. This is a complex matter because every decision you make has a number of pros and cons. It is therefore very wise to discuss this with your patent attorney before making a decision.
THE COSTS OF A UNITARY PATENT
After the joint application procedure, a classic European patent must be assessed and granted separately in each desired European country. And in the event of a conflict, it must also be fought out in court separately in each country. The idea was now to have such a conflict about a certain Unitary Patent handled by the Unified Patent Court (UPC), which is yet to be established, and that the ruling would then also be valid in all selected countries. More protection for less money was the idea.
The UPC should also only handle patent cases where the judges must also come from different countries. In addition, the UPC should also ensure that the total costs of going to court would be much lower than in the case of a classic European patent where several lawsuits would have to be conducted simultaneously in different countries. This often costs millions of euros.
It is expected that a lawsuit will generally be cheaper for the UPC than the various lawsuits, such as in the case of a European patent. However, when it concerns a complex case, such a lawsuit could also run into the millions of Euros. Furthermore, the disadvantage is that if a lawsuit is lost by the UPC, the case is immediately lost in all selected countries.