New Unitary Patent system: pioneering a new era of patent protection and enforcement in the EU

This article is brought to you in association with the European Commission.

The Commission welcomes the launch of the Unitary Patent system today, which will make it simpler and easier for companies to protect their innovations in Europe and capitalise on their intellectual property. The Unitary Patent system will strengthen the EU’s innovation and competitiveness and complete the Single Market for patents. It will initially cover 17 Member States, representing around 80% of the EU’s GDP. Participation is open to further Member States in the future.

The Unitary Patent system provides a one-stop-shop for the registration and enforcement of patents in Europe. This means lower costs, less paperwork, and reduced administrative burden for innovators, in particular for SMEs. It allows companies and other innovators to receive a single “unitary” patent for their inventions, valid across all the participating Member States. This replaces the need to navigate a complex patchwork of national patent laws and procedures and sets aside the costlier national validation requirements applicable to European patents.

In addition, a new Unified Patent Court (UPC), with jurisdiction over Unitary Patents and existing European Patents, will allow companies to enforce their patent rights more effectively. The UPC will provide a more consistent legal framework for patent disputes and reduce the risk of inconsistent rulings. Concretely, a single action before the UPC will replace multiple parallel proceedings before national courts.

The main advantages of the new Unitary Patent system are:

• Lower costs for protecting patents in Europe: The new system offers a cost-effective way for patent protection in the participating Member States as it eliminates the need for national validation and renewal procedures in each EU country, which are costlier and more burdensome. A Unitary Patent will cost less than €5,000 in renewal fees over 10 years, instead of the current level of around €29,000 for renewal in the participating Member States. The Unitary Patent will also strongly reduce the gap between the costs of patent protection in the EU and in major trade partners such as the USA or Japan.
• One-stop-shop for registration of patents: Building on the existing European Patent, a new, streamlined process with a single and free request for unitary effect, granted by the European Patent Office (EPO), will reduce the time and cost required to obtain patent protection in multiple EU countries.
• Uniform protection of patents across the participating EU countries: The Unitary Patent is a single patent title offering uniform protection across 17 participating Member States, covering around 80% of EU’s GDP and including the three largest EU economies, namely Germany, France and Italy. Further Member States are expected to join the system in the future and the ultimate goal is to provide EU-wide coverage.
• Higher legal certainty in enforcing patents: The new Unified Patent Court (UPC) will facilitate the handling of patent disputes and allow for more consistent and predictable judicial framework. It will also eliminate the risk of divergent legal decisions in the participating Member States, since a single action before the UPC will replace multiple parallel proceedings before national courts. A significant advantage of the UPC is that it will handle litigation relating not only to the new Unitary Patents but also to other European Patents.
• Innovation, competitiveness and economic growth: By providing a simpler and more cost-effective way for inventors and businesses to protect and enforce their intellectual property in the EU, the new Unitary Patent system will encourage innovation. It will also promote the development and commercialisation of new technologies and products and improve competitiveness and economic growth, while also helping to attract foreign investment into the EU.

Procedure

The first phase of the procedure to obtain a Unitary Patent is to file a European Patent application at the European Patent Office (EPO). The EPO then conducts an examination which, if positive, results in the grant of a European Patent. This phase already exists today and remains unchanged.

Then, within one month from that grant, the holder of the patent may request EPO to grant unitary effect for the participating Member States. At the same time the holder of the European Patent may also validate it in additional countries not covered by the Unitary Patent system, according to the national procedures already applicable today, depending on the intended geographical coverage.

Background

The European Patent Office was created in 1978 and represented a huge improvement over the national patent regimes that existed until then. However, once a European Patent is granted it is then broken down in a bundle of national patents that are independent from each other. In particular, patent disputes have to be litigated separately before multiple national courts, with a risk of diverging decisions.

In 2000, the Commission made the first proposals for what became the two current EU Regulations on which the Unitary Patent system is based. The two Regulations were adopted in 2012. The UPC Agreement is an intergovernmental agreement signed by participating Member States in 2013. Earlier this year all the ratification requirements of the UPC Agreement were fulfilled, ensuring its entry into force on 1 June 2023 (for 17 Member States initially).

Several other aspects of the legal framework for patenting still required improvement. This is why, on 27 April 2023, the Commission proposed measures to complement the Unitary Patent system, namely new rules related to standard-essential patents (SEP), compulsory licensing of patents in crisis situations, and a reform of the legislation on supplementary protection certificates (SPC), including the creation of a unitary SPC.