After years of discussion and preparation, the EU’s unitary patent system is becoming a reality and is expected to start on 1 June 2023. This is a real revolution in patent protection in the European Union, as with the entry into force of the unitary system, the Unified Patent Court will also commence its activities.
The current system – the ‘classic’ European patent
Today, those wishing to obtain protection for their solutions file a request for a European patent with the European Patent Office (EPO), which verifies whether the invention described in the application meets the conditions for granting a patent.
In order to obtain protection in the countries that have acceded to the European Patent Convention, a patent must additionally undergo a validation procedure at the national patent office. This involves the submission of additional translations and, for some countries, the payment of an additional fee.
Once this procedure is complete, a European patent has exactly the same effects as a patent granted by a national patent office in the relevant territory.
A single patent for all countries
On 1 June this year, the unitary patent system will become operational, which means that from that date it will be possible for European patents to be registered by the EPO with unitary effect, being exerted automatically across the 17 EU Member States that have signed the Agreement on a Unified Patent Court.
Countries currently participating in the unitary patent system are: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden.
Poland is not part of this system, which means that holders of European patents, both the ‘classic’ patent and the European patent with unitary effect, wishing to benefit from patent protection in Poland, will have to apply for it either directly at the Polish Patent Office or via the existing international route.
With the entry into force of the unitary system, the Unified Patent Court (UPC) will also become operational, with jurisdiction over not only unitary patent cases, but also European patents.
Poland, despite calls from practitioners, has ultimately decided not to join the system. Nonetheless, the new regulations may apply to some Polish businesses.
‘Classic’ European patent holders will be able to opt out of the jurisdiction of the UPC for a period of 7 years after the entry into force of the system (with an option to extend this period for a further 7 years). This applies to those whose proceedings are already pending or have yet to commence and to other right holders.
This will require a formal request to be filed with the UPC, meaning that for ‘classic’ European patents, the parallel jurisdiction of the UPC and the national authorities will apply under the existing rules during the 7-year transitional period.
On the other hand, during the sunrise period from 1 March to 31 May this year, current ‘classic’ patent holders can request opt-out clauses for granted European patents and published applications to exclude the jurisdiction of the UPC.
In or out of the unitary patent system
The answer to this question is far from obvious. One of the major advantages of the unitary system is automatic patent validation in all EU Member States within the agreement.
On the other hand, a clear disadvantage is the need to maintain a patent also in markets of countries that may be completely irrelevant to a business operator. Another disadvantage can be the high cost of the proceedings which, according to the UPC’s price list, can run into tens of thousands of euros.
Undoubtedly, the use of the possible exemption from the jurisdiction of the UPC requires a thorough analysis by business operators in terms of their own needs and business plans.
Would you like to learn more about the possibilities and benefits of using the unitary patent system? Feel free to contact us.