The EU's new Unitary Patent System is about to start

New EU Unitary Patent System as an Extension of the existing European Patent

European patents (EP) granted by the European Patent Office must currently still be validated for selected countries after grant to gain the same effect as national patents. Subsequently, annuities have to be paid separately for each country, and disputes are handled by national courts.

 

With the Unitary Patent (UP) system of the EU, it is now possible to apply for validation of a granted EP patent as a Unitary Patent (also termed “EU patent”) in numerous member states of the European Union, which enables uniform patent protection in a large number of EU countries, no longer limited to individual countries. Annuities are paid centrally to the European Patent Office for the maintenance of the EU patent.

 

In addition to the Unitary Patent, the unitary patent system in the participating EU member states also includes a unitary EU Patent Court (EPC), whose decisions are binding in all UP patent countries. The EPC is responsible for all disputes arising from European patents already in force or granted in the future in the participating EU member states, including nullity actions against these patents.

 

Effective date June 1, 2023

The UP system will enter into force on June 1, 2023.

Participating EU member states: Currently 17, later up to 25 countries

At the start of the unitary patent system, 17 states that are both EU members and member states of the European Patent Convention EPC will initially participate in the unitary patent system:

 

AT   Austria FR   France MT   Malta
BE   Belgium DE   Germany NL   Netherlands
BG   Bulgaria IT   Italy PT   Portugal
DK   Denmark LV   Latvia SL   Slowenia
EE   Estonia LT   Lithuania SE   Sweden
FI   Finland LU   Luxembourg      

 

In the medium term, all EU states except Spain, Poland and Croatia plan to participate in the UP system, so that UPs will then have effect in 25 countries.

Grant of EU unitary patents by the European Patent Office

EU unitary patents are granted by the European Patent Office on the basis of the European Patent Convention (EPC), as was previously the case for European patents. After a European patent has been granted, validation in individual EP contracting states will continue to be possible as before. For the countries (currently 17, later up to 25) participating in the unitary EU patent system, however, individual validation is no longer necessary, but uniform effect of the European patent can be requested there after it has been granted.

 

For not (yet) participating EP countries, validation must be carried out in each individual country, as before. This currently still applies to

 

AL   Albania HU   Hungary NO   Norway
CH   Switzerland IE   Ireland PL   Poland
CY   Cyprus IS   Iceland RO   Romania
CZ   Czech Republic LI   Liechtenstein RS   Serbia
ES   Spain MC   Monaco SK   Slovakia
GB   United Kingdom ME   Montenegro SM   San Marino
GR   Greece MK   North Macedonia TR   Turkey
HR   Croatia            

 

Jurisdiction of the EU Unified Patent Court EPC

The Unified Patent Court (UPC) will be responsible for all disputes concerning European patents in the member states participating in the unified EU patent system. This includes existing and future European patents validated there as well as future unitary (UP) patents. The EPC's jurisdiction applies both to infringement actions out of these patents and to nullity actions against these patents.

 

For existing European patents already granted in the past, it is possible to exclude the jurisdiction of the EPC initially for a period of seven years (opt-out declaration). The opt-out declaration has the effect that, as before, national courts remain competent for disputes regarding granted and validated EP patents.

No deadline for opt-out declaration

An opt-out declaration may be made at any time as long as no nullity action or infringement action based thereon is pending before the EPC against the respective European patent.