Unitary Patent i.e. European Patent with Unitary Effect

The unitary patent system is an important development in Europe’s patent system.

The Unitary Patent System came into force on June 1, 2023.

The Unitary Patent System leads to cost savings for companies, mainly due to lower validation fees.

The European Patent Office (EPO) remains the office in charge of examination of European patent applications.

However, upon grant of a European Patent, the Applicant will be able to choose between:

• a European patent with unitary effect in 17 countries (to this date) and
• a “classic” European patents through a validation step.

Some countries which are party to the European Patent Convention (EPC) are not covered by the Unitary Patent (such as United Kingdom, Switzerland, Spain, Turkey, etc.) either because they are not part of the European Union or because they chose not to participate in the Unitary Patent.

For those countries, a validation step is the only option to get a protection by the European patent.

Unified Patent Court

The Unified Patent Court (UPC) has jurisdiction concerning validity and infringement of:

• Unitary Patents; and
• “classic” European patents in 17 European countries part of the European Union.

However, concerning “classic” European patents, during a transition period of 7 years, the patent owner may:

• accept the jurisdiction of the Unified Patent Court;
• “opt-out”, i.e. choose to remain only in the existing system where national courts are competent for each national part of the European patent.

For countries outside the Unitary Patent Court Agreement (such as United Kingdom, Switzerland, Spain, Turkey, etc.) national courts will remain the only option.

Cost implications

“Classic” European Patent and Unitary Patent examination costs are identical.

Concerning validation and maintenance costs for countries that have joined the unitary patent system, no validation is required when a unitary effect is required and annual fees are roughly equivalent to what has to be paid for four validation States.

However, as opposed to a European Patent, individual national parts cannot be abandoned individually for a Unitary Patent and thus the costs for renewal fees cannot be adjusted accordingly during the patent life.

Decisions to be taken

Concerning existing European patents, the Patentee will have to make a choice at the latest upon grant, between:

• a Unitary Patent and potentially “classic” European patents parts with validation in countries that are not covered by the Unitary Patent such as United Kingdom, Spain and Switzerland;
• “classic” European patents parts through validations in all countries of interest.

The first option may prove less costly if the number of countries chosen for protection exceeds 4 or 5.

The factors to be taken into account include:

• cost of validation and geographical scope in favour of Unitary Patent / Unified Patent Court system;
• risk of loss of the European Patent in several countries before the Unified Patent Court; and
• particularities of the Unified Patent Court with short procedural deadline, possibility to obtain an injunction in several countries and judge panels including technically qualified judges.

Our European patent / Unitary patent cost comparator

Please see our online cost comparator on our website to compare the cost of validation and maintenance with or without Unitary Patent for a selection of countries.

Since timing of the proceedings is constrained, the costs for litigation before the Unified Patent Court will be higher than before 1 or 2 national courts (but decision might be enforced in several countries).