Current EU patent package
Since 1977, the European Patent Office (EPO) has provided a centralised procedure to grant patents. Today a patentee can apply to 38 countries that have signed the European Patent Convention (EPC). The current 'classical' European patent granted by the EPO is not a unitary title; it confers a bundle of national patents, which, if litigated, are dealt with before corresponding national courts. Against that background it has long been a goal of a particular sector of intellectual property stakeholders to create a 'true' EU patent that exists in all Member States and can be invalidated in one hearing for the whole of Europe. To some this is attractive, but it comes with a big risk. The unitary patent could be revoked in a single action before the new court, meaning that it could potentially be more vulnerable than the current 'classical' European patents, which have to be attacked at a national level, one by one.
What are the unitary patent and the Unified Patent Court?
The 'European patent with unitary effect' ('unitary patent' for short) is a single patent that will cover all participating Member States of the European Union (EU). It has been proposed that, like the current 'classical' European patent, the unitary patent will also be granted by the EPO and will be a single patent that will cover all participating Member States of the EU. Consequently, some EPC countries will remain outside the unitary patent because they are not EU members.
It is envisaged that European patent applications will be used to obtain either a 'classical' European patent, or a unitary patent. Under this arrangement, there will be no change whatsoever for searching, examination and grant at the EPO. On grant of the European patent, the applicant will have the choice of whether to obtain the usual bundle of national patents or go for unitary protection. The deadline for requesting the registration of unitary effect will be one month after grant. Renewal fees will then be payable to the EPO on an annual basis. Exactly what level the renewal fees will be set at is not known, but the legislation provides for the renewal fees to be calculated on the basis of an 'average' European patent, which experts agree is one that designates protection in four or five Member States.
The EU patent package consists of two regulations on the unitary patent together with the Agreement on the Unified Patent Court (UPC). The two regulations on unitary patent protection will not be fully applicable until the Agreement on the UPC enters into force, and in any case not earlier than 1 January 2014. The agreement was signed on 19 February 2013 and will enter into force as soon as 13 states, including France, Germany and the United Kingdom, have ratified it.
The unitary patent: who's in, and who's out...
Currently, all EU Member States have agreed to take part in the unitary patent, except Spain, Italy and Poland. No one knows when countries will ratify the legislation, however. This means that it is difficult to determine the actual coverage of unitary patents, and it is likely to change over time. At the outset the 'classical' European patent is available for all contracting states of the EPC. The EU includes 27 countries (shown in light grey on Figure 1) whereas a total of 38 countries have signed the EPC (which includes those in black) ; therefore, a 'classical' European patent can be obtained in a total of 13 countries that are not part of the EU.
Unitary patent: how will it work?
A unitary patent can be revoked by the Opposition Division or the boards of appeal of the EPO, in the same way a classical European patent can. It can also be revoked or limited by an amendment of the claims, by the patent holder in a limitation or revision procedure before the EPO according to Article 105(a) of the EPC.
Initially, the unitary patent gives applicants the option to choose the unitary effect or a classical European patent for the states that do not participate in enhanced cooperation, such as Italy, Norway, Spain and Switzerland. …