UPC and European Patent Applications

Unitary Patents … Coming Soon to Europe

Currently, the European Patent System allows applicants to choose between filing an application in the country or countries of interest, and filing a single European patent application and later designating the countries where you want that patent to be effective.

Coming soon, likely in the Spring of 2023, Unitary Patents will make it possible to apply for patent protection in all member states with a single request to the European Patent Office. The Unitary Patent will provide patent protection in member states that are both participating in the Unitary Patent system and have ratified the agreement on a Unitary Patent Court at the time your application enters the Unitary Patent system.

The Unitary Patent system will eliminate the need to litigate patent disputes in multiple different countries by allowing patent holders to enforce their patents in all member states. However, this also leaves their patent open to challenge across all member states simultaneously.

The Unitary Patent Court (UPC) is a new court designed to prevent a patent holder from having to enforce their patent in multiple countries, which can be expensive, time-consuming, and may lead to different decisions in different countries. However, because the UPC is a new court, there is no body of law to rely on in making arguments and decisions, and how the UPC may rule on decisions could surprise parties.

What options does an applicant have?  

Once the UP system is in place, a Unitary Patent must be requested following the traditional filing and examination procedure for a European Patent. Prior to that, transitional measures are in place that allow an applicant to file an early request for unitary effect so their patent will be registered as soon at the Unitary Patent system takes effect; or, an applicant can request a delay in issuing the decision to grant their application to ensure the publication of their patent occurs after the Unitary Patent system starts.

A Unitary Patent can be combined with the traditional European Patent and/or with individual national patents in order to obtain coverage in each state of interest. However, in each country, you cannot have double protection from both a UP and a European or National patent.

What options does a patent holder have?

In most cases, if your European Patent has already been granted and published more than 3 months ago, it falls under the traditional European Patent system, and would not be eligible for the UP system.

If you have questions about your international patent coverage and how the new UP system may affect your rights in Europe, contact us for more information.