Green Light for Unitary Patent and Unified Patent Court

“The main benefits of a Unitary Patent will be lower maintenance costs and simpler administration. After the transitional period, translation costs will also be less.” countdown to the launch of the EU Unitary Patent has begun, with the new system expected to start before the end of this year.

The final legal step took place on January 19, when Austria deposited its instrument of accession to the Protocol on Provisional Application of the Unified Patent Court (UPC) Agreement. It is the 13th country to take this step, meaning that the provisional application period has now entered into force.

In practice, this means that UPC judges and other staff can now be recruited, IT systems set up and budget confirmed. The provisional period is expected to last at least eight months, i.e. until late September 2022, although it could be as long as 12 months.

The exact date when the new system will take effect will be determined by the 13th state, namely Germany, depositing its instrument of accession to the UPC Agreement. Germany has passed the necessary legislation, so this is only a question of timing: the country will deposit once it is clear that the preparations are sufficiently advanced.

In a statement announcing the latest development, European Internal Market Commissioner Thierry Breton said: “This will benefit all companies, and in particular SMEs. For instance, a Unitary Patent covering a territory of potentially up to 25 Member States will cost less than €5,000 in renewal fees over 10 years, instead of the current level of around €29,000. The Unitary Patent will also reduce the gap between the cost of patent protection in Europe compared with the US, Japan and other third countries.”

Unitary Patent

The Unitary Patent will be examined and administered by the European Patent Office (EPO). Applicants will file European patent applications, which will be searched and examined in the normal way. On grant, applicants will be able to choose the Unitary Patent option, which will provide a uniform right covering up to 25 of the 27 EU member states (Spain and Croatia are not taking part).

However, not all 25 states will participate at launch. At present, 17 have ratified the necessary Agreements.

The main benefits of a Unitary Patent will be lower maintenance costs and simpler administration. After the transitional period, translation costs will also be less.

In a statement, the EPO said: “With a view to supporting patent applicants in an early uptake of the Unitary Patent, the EPO will introduce transitional measures with respect to European patent applications having reached the final phase of the grant procedure. These measures will be made available ahead of the entry into force of the Unitary Patent system.”

UPC Competence

The Unified Patent Court (UPC) will come into force at the same time as the Unitary Patent and will have exclusive competence for both European patents and European patents with unitary effect in the participating states. However, it will be possible for patent owners to opt out during the transitional period.

The UPC will have national, regional and central divisions made up of panels of judges, as well as an appeal court and mediation center. It will be able to determine both validity and infringement of patents.

The UPC will have no jurisdiction over national patents in the participating member states, which will continue to be dealt with by national courts.

The UPC is designed to provide more streamlined enforcement for patents, cutting out duplication of work and the possibility of contradictory decisions. More information about the UPC is available on the dedicated website.

The introduction of the Unitary Patent and UPC will be the biggest change to patent protection in Europe since the European Patent Convention in the 1970s. Any business that files patents in Europe, that plans to file in Europe in the future, or that may be a defendant in litigation, should examine the details of the new system to understand how they will be affected.


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Join the Discussion

5 comments so far.

  • [Avatar for Anonymous]
    February 4, 2022 09:34 am

    @ Alicia I agree. European patents in non-EU and non-UPC EU countries, will not be subject to the jurisdiction of the UPC. I was wondering why @Max Drei said ‘risk losing all rights in 38 Member States in a single maverick court’. The UPC will never have juridiction in all 38 countries. Or am I missing something? In any case I think even larger SMEs will like the apparant simplicity of the system.

  • [Avatar for Alicia owens]
    Alicia owens
    February 3, 2022 10:46 pm

    A Unified Patent Court (UPC) will have jurisdiction over all European patents (current and future) assigned to participating EU Member States that have ratified the UPC Agreement (UPCA) (Spain, Croatia, and Poland are not participating, and neither is the UK, EU status aside, now that it has withdrawn from the UPCA), as well as all unitary patents, unless they have been opted out of the new court’s jurisdiction.)

  • [Avatar for Kate Macdonald]
    Kate Macdonald
    January 24, 2022 04:45 am

    @MaxDrei exactly. One point of clarification as I am not sure I follow your thinking, please can you explain how the risk applies to all 38 Member States. Are you expecting the non UP country courts to follow the UPC decisions for granted EP patents? Or are you thinking about EP applications? Thanks.

  • [Avatar for MaxDrei]
    January 21, 2022 02:43 pm

    Back in 1978, when the EPO first opened its doors, there was hesitancy to “put all one’s (European) eggs in one basket” with one application at the EPO. I sense the same hesitancy now. Will inventors embrace the UP (to reduce the renewal fee budget in 38 EPC Member States) and in doing so risk losing all rights in 38 Member States in a single maverick court in one jurisdiction in Europe? Or will Big Pharma opt out of the UP?

    Nobody knows yet, do they?

  • [Avatar for Kate Macdonald]
    Kate Macdonald
    January 21, 2022 09:15 am

    Great summary @James Nurton. May I add that the European patent grant procedure will NOT change in any way. There is also no change in EPO opposition or appeal procedures. The opt out will only be available for EP patents, not for EP patents with unitary effect (otherwise known as Unitary Patents). A new frontier is opening up. It isn’t quite the Wild West but it will be interesting to see how this one will be won. How are our colleagues in the US and CA viewing this new development?