The Unitary Patent System – in detail

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Unitary Patent

The Unitary Patent will be a new, single patent covering the 25 participating Member States and available as a designation on a granted European Patent. A Unitary Patent may be enforced in the UPC and not in any other Court, to obtain EU-wide relief (including a pan-European injunction). However, the validity of a Unitary Patent may be the subject of a central attack in the UPC and may still be opposed at the EPO as at present. The central attack in the UPC has the advantage of not being restricted to the 9 month window in the EPO.

The European Patent Office will be responsible for the administration of Unitary Patents. It will be possible to obtain national patents, traditional European Patents, Unitary Patents and combinations of these (e.g. parent Unitary Patent and divisional European Patents). However, it will not be possible to "double/triple protect" by patenting the same invention in the same country by more than one of these patent types.

During the transitional period, which will last at least seven years, it will be possible to maintain a European Patent either as a patent for which the UPC has jurisdiction (EP patents which have not been opted-out or have been re-opted-in) or as a European patent for which the UPC does not have jurisdiction (opted-out European Patents). Patentees will need to develop a patent prosecution and management strategy to take advantage of the numerous permutations.

Unitary Patent Court (UPC)

The UPC will have exclusive jurisdiction over Unitary Patents. During the transitional period, all European patents which have not been opted-out and which cover EU Member States will also be litigated in the UPC. After the transitional period expires, all Unitary Patents and European Patents covering EU Member States will be litigated in the UPC. It is intended that the UPC will reduce the cost of patent litigation, limit forum shopping and encourage consistency of judgments. The UPC will have the power to grant EU wide injunctions as well as other interim and final remedies (e.g. damages and delivery up/destruction/recall of infringing products).

Scope

The Unitary Patent was intended to cover all 27 (now 28 with the addition of Croatia) EU Member States involved in its negotiation. However a number of countries have stated their intention to remain outside the system, at least for now. Italy, Spain and Croatia are not participating in the Unitary Patent, although Italy has signed the Agreement on the UPC and has recently indicated its interest in joining the system. Poland is participating in the Unitary Patent, but has not signed the Agreement on the UPC. This means that a patent applicant wishing to use the Unitary Patent to cover all EU Member States will additionally have to file national applications or European Applications with validations in the countries which have not adopted the Unitary Patent.