Unitary patent

The European patent with unitary effect (unitary patent) is intended to create uniform patent protection in the countries of the EU. The unitary patent is currently not yet available and will not (initially) be valid in all EU countries. Although the BREXIT decision in Great Britain has recently led to renewed uncertainty about the future of the unitary patent - without Great Britain the unitary patent cannot come into force according to the current contractual situation - Great Britain has signalled that it may want to ratify the agreement in 2017. It therefore seems possible that the regulatory package consisting of several pieces of legislation will enter into force in 2018, at which point the unitary patent will gradually become available to those countries in which the Agreement on a Unified Patent Court (EPC) has effects.

During the expected long transitional period until a unitary patent is available in all EU member states, the applicant will still have the comfort of knowing that the European patent and the unitary patent are closely interlinked. In any case, the application and grant procedure will continue unchanged before the European Patent Office (EPO) in accordance with the known rules of the EPC until the patent is granted. Only then does the patent proprietor have to decide whether he wants the obtained patent to be treated as a unitary patent. This is done by a request for "unitary effect". As a result, the patent granted by the EPO is considered a unitary patent in those states which are already members of the EPC at the time of grant. In all other countries of the EPC, the European patent remains unchanged as a "bundle patent" and can be put into force there according to the known rules.

Compared to the current situation, the advantages of the unitary patent for the patentee are logical and will only be available after grant. In contrast to the bundle patent, which is subject to national regulations in the member states and can only be enforced nationally, the unit patent develops uniform protective effects in the countries concerned and can thus be asserted against potential infringers in a single procedure. In return, it is possible for third parties to have the unit patent examined by a court and, if necessary, destroyed in only one invalidity procedure. For such nullity proceedings, a central chamber of the newly created Unified Patent Court (EPG) will be competent, which will have its seat in Paris, London or Munich, depending on the technical field. The central chamber will also have jurisdiction for disputes arising from bundle patents, whereby the patent proprietor will be given the option of excluding this jurisdiction (opt-out).

The EU Commission has placed particular emphasis on significant cost savings as the objective of the unitary patent. From the point of view of SMEs this is unfortunately not to be expected without further ado. Since the application and grant process will initially be the same as for the European patent, the costs will remain unchanged until the patent is granted. The costs of bringing the granted patent into force in the individual Member States, which are mainly determined by translation costs, have already been significantly reduced in recent years by the provisions of the London Agreement. For example, a European patent granted in German does not require translations for entry into force in France and Great Britain. On the other hand, translations are currently required if the European patent is to enter into force in Portugal, for example. These costs would actually be eliminated if a unitary patent were chosen.

However, for a transitional period of at least 6 years (until a machine translation system is operational), a translation of the complete granted patent must be prepared in any case when choosing a unitary patent. If the language of proceedings before the EPO is German or French, an English translation is required; if the language of proceedings is English, a translation into any official language of an EU Member State is required. For the German applicant in particular, this transitional period may therefore result in constellations in which the translation costs for the unitary patent are higher than for the European patent.

With its decision of 13 February 2020, the Federal Constitutional Court initially stopped the entry into force of the agreement on the Unified Patent Court..

Further details can be found in our NEWS 01/2013 

Find out more in the Leitfaden zum Einheitspatent (EPA)