Introduction: What is the Unitary Patent System?

The Unitary Patent System comprises, on the one hand, a new European patent with unitary effect in all participating EU Member States, and, on the other hand, a new Unified Patent Court (UPC) which will decide on these unitary patents, but ultimately also on all conventional European patents (with national validations, so-called “bundle patents”). After decades of planning, the system will thus for the first time create a quasi EU-wide patent right.

Patent protection in all participating EU countries

The goal of the unitary patent system is to establish a more uniform approach for granting, defending and, in particular, enforcing European patents in the various EU member states. The already centralized grant and opposition procedures at the European Patent Office (EPO) will remain unchanged for this purpose. The new system will add centralized post-grant infringement and revocation proceedings.

Under the new system, it will be possible to file a request for unitary protection at the EPO for each European patent, instead of validating the patent individually in several countries. The unitary effect will lead to protection in all participating EU countries and thus to a patent covering 24 EU member states (all except Spain, Poland and Croatia). Therefore, only one common annual fee is payable to the EPO to maintain protection in all these countries. The unitary patent will coexist with national patents and traditional bundle patents.

Thus, once the patent has been granted by the European Patent Office, the applicant will have the choice of whether to select the new unitary patent.

Impacts and transition period

However, it is important to note that the new patent system will not only affect newly granted patents. In addition to the new unitary patent, the new Unified Patent Court will also have exclusive jurisdiction over all bundle patents (and also supplementary protection certificates, SPCs). Therefore, all validations of existing bundle patents in countries that have ratified the UPC-Agreement will also be subject to the jurisdiction of the UPC by default.

During a transition period of at least seven years, patent owners can individually opt their patents out of the UPC system – by filing an opt-out request with the UPC. In that case, only national courts will continue to have jurisdiction over these patents. Patent owners can also re-enter under certain conditions after they have opted out by withdrawing the opt-out. During the transition period, it will also be possible for patents that have not been opted out to continue to be litigated in national courts, as an option.