This article on ‘Unitary Patent System: All You Need to Know’ was written by an intern at Legal Upanishad.
The unitary patent system is a new concept that tries to enforce and implement the same system for all the participating members. And the motive behind this concept is that it will make the system more reliable and good. Moreover, it is also a step to increase cooperation among the participating countries. Now, this Unitary Patent System has two bodies in it. One is Unitary Patent Protection and the other is Unitary Patent Court, which has its specific roles.
How it is different from the earlier system?
A unitary patent is a new option after a grant of a regular EP patent. So, there will be no changes in the proceedings up to the ground. After the grant of the EP patent, an applicant may choose to request a unitary patent which would then have a uniform effect in all participating member states. That means it can be enforced in all participating member states in single enforcement proceedings. As a downside for the proprietor, it came invalidated in all member states in a single revocation proceeding.
With the unitary patent, it is no longer necessary to validate the patent individually in each country for each protection is sought, but protection can be achieved in all participating member states with a single request with the EPO. Additionally, instead of paying renewal fees to the various national patent offices, as you would for a regular IP pattern only a single renewal fee needs to be paid each year conveniently with a single pattern office, the EPO.
The Unitary Patent and Unitary Patent Court
The arrival of the unitary patent and the unified patent court provides you with new opportunities for the validation and enforcement of European patents. Litigation on patent infringement and the validity of European patents can now only be handled by national courts. The arrival of the unified patent court will make it possible to enforce centrally for a number of countries. You then no longer have to litigate separately in these countries. With the UPC one procedure will result in a decision that is valid for all participating countries.
New European patents that you validate as unitary patents are automatically covered by the UPC. European Patents that have been granted are also subjected. The current system of decentralized enforcement will also remain in place. If you do not want your granted European patent to be subjected to the UPC, you should file an opt-out request. If so, you can submit an opt-out and nothing will change. You can submit your opt-out at the start of the sunrise period. But. even after this period, it is still possible to file an opt-out for a period of seven years. As long as there is no court action on the patent.
At the start of the UPC, the unitary patent also became a reality. From that moment on you have the option to validate a European patent as a unitary patent. This makes your patent effective at once in all participating countries. So, it is not a new patent, but an additional option within the current validation process of the European patent. The process of examination and grant of your European patent remains the same. Suppose you want to validate your European patent in a number of countries. It will then still be possible to designate these countries individually. And after validation, you pay annual maintenance fees in each of these countries.
If several countries participate in the unitary patent, then it may be advantageous to validate the European patent as the unitary patent. This requires one translation, and you paid one annual fee for the maintenance costs. The unitary patent is subjected to the unified patent court, where enforcement is centralized. But an opt-out is not possible for unitary patents. For current European patent applications, a transitional arrangement is provided during the sunrise period.
Once an intention to grant has been issued, you have two options with you which are as follows. Number one is to request a postponement of the publication of the patent grant. And the second option is to make an early request to validate the patent as a unitary patent.
Pros and Cons
So, in the unitary patent which a bit relates to validation and maintenance of the patent, the main changes are cost savings. So as you know, under the current system, which we’re now going to start calling the classic system in order to keep a granted European patent enforcing in all of the countries that you want, you have to meet local requirements, which might include the filing of a local language translation and also include appointing a local agent and will certainly include paying a local renewal fee every year.
Those requirements will be reduced in the 17 countries participating in the new system. So, there will be only one translation to be required and they’ll be a central renewal fee payable as a single payment each year to the EPO, which will be equivalent to about four or five national renewal fees. So, you’ll get more bang for your buck and that’s particularly attractive if you are an applicant who tends to validate or would like to validate if only you had the money, broadly geographically. But if you’re an applicant who only cares about the UK, France, or Germany, for example, the new system is less attractive.
The unitary patent system is a new idea, but it seems very effective because first of all, it is very cost-effective as compared to the earlier system. Secondly, because it is a unitary system, there will be homogeneity among all the member states and that will make the system more effective and reliable. Thus, the enforcement of a Unitary patent system is indeed very beneficial and is also necessary.
Therefore, a Unitary Patent System seems to be very effective and can be relied upon because it will make the system cost-effective, and it will also increase its reliability and effectiveness. And it will provide one effective patent jurisdiction and thus will serve as a one-stop-shop for the participating nations to provide them with uniform protection.
List of References
- Unitary Patent, European Patent Office, available at: https://www.epo.org/applying/european/unitary/unitary-patent.html
- The unitary patent system, European Commission, available at: https://single-market-economy.ec.europa.eu/industry/strategy/intellectual-property/patent-protection-eu/unitary-patent-system_en