photo: Darkmoon_Art, Pixabay
“The main benefits of a Unitary Patent will be lower maintenance costs and simpler administration. After the transitional period, translation costs will also be less.”
The countdown to the launch of the EU Unitary Patent has begun, with the new system expected to start before the end of this year.
The final legal step took place on January 19, when Austria deposited its instrument of accession to the Protocol on Provisional Application of the Unified Patent Court (UPC) Agreement. It is the 13th country to take this step, meaning that the provisional application period has now entered into force.
In practice, this means that UPC judges and other staff can now be recruited, IT systems set up and budget confirmed. The provisional period is expected to last at least eight months, i.e. until late September 2022, although it could be as long as 12 months.
The exact date when the new system will take effect will be determined by the 13th state, namely Germany, depositing its instrument of accession to the UPC Agreement. Germany has passed the necessary legislation, so this is only a question of timing: the country will deposit once it is clear that the preparations are sufficiently advanced.
In a statement announcing the latest development, European Internal Market Commissioner Thierry Breton said: “This will benefit all companies, and in particular SMEs. For instance, a Unitary Patent covering a territory of potentially up to 25 Member States will cost less than €5,000 in renewal fees over 10 years, instead of the current level of around €29,000. The Unitary Patent will also reduce the gap between the cost of patent protection in Europe compared with the US, Japan and other third countries.”
Unitary Patent
The Unitary Patent will be examined and administered by the European Patent Office (EPO). Applicants will file European patent applications, which will be searched and examined in the normal way. On grant, applicants will be able to choose the Unitary Patent option, which will provide a uniform right covering up to 25 of the 27 EU member states (Spain and Croatia are not taking part).
However, not all 25 states will participate at launch. At present, 17 have ratified the necessary Agreements.
The main benefits of a Unitary Patent will be lower maintenance costs and simpler administration. After the transitional period, translation costs will also be less.
In a statement, the EPO said: “With a view to supporting patent applicants in an early uptake of the Unitary Patent, the EPO will introduce transitional measures with respect to European patent applications having reached the final phase of the grant procedure. These measures will be made available ahead of the entry into force of the Unitary Patent system.”
UPC Competence
The Unified Patent Court (UPC) will come into force at the same time as the Unitary Patent and will have exclusive competence for both European patents and European patents with unitary effect in the participating states. However, it will be possible for patent owners to opt out during the transitional period.
The UPC will have national, regional and central divisions made up of panels of judges, as well as an appeal court and mediation center. It will be able to determine both validity and infringement of patents.
The UPC will have no jurisdiction over national patents in the participating member states, which will continue to be dealt with by national courts.
The UPC is designed to provide more streamlined enforcement for patents, cutting out duplication of work and the possibility of contradictory decisions. More information about the UPC is available on the dedicated website.
The introduction of the Unitary Patent and UPC will be the biggest change to patent protection in Europe since the European Patent Convention in the 1970s. Any business that files patents in Europe, that plans to file in Europe in the future, or that may be a defendant in litigation, should examine the details of the new system to understand how they will be affected.