It depends on the number of countries were you would otherwise have validated your patent. For example, patent holders with business interests in only a few European countries will benefit less from a unitary patent than patent holders with a business interest throughout the EU.
The initial costs of a unitary patent involve the fees of service providers, and the translation costs (in a transitional period until 1 June 2035). No official fees to the EPO are due for requesting the unitary effect. But an important cost factor of the unitary patent is the yearly renewal fee payable to the EPO. Focusing solely on the renewal fees, the EPO set these at a level corresponding to the combined renewal fees due in the four countries where European patents were most often validated in 2015 (Germany, France, the Netherlands and the UK). Now that the UK does not participate, national renewal fees are still payable to the UK if a patent is to be validated and kept in force in these top-4 countries. It follows that the unitary patent option is somewhat more expensive than the sum of national validations.
However, the upside is that the combination of a unitary patent allows central enforcement in an additional 14 EU member states against no additional costs. Considering that national validation fees are negligible, whereas renewal fee payments with associated transactional costs in a large number of countries can be substantial, the unitary patent will result in cost savings when a European patent would otherwise have been validated in at least 4 EPC member states participating in the UPC (e.g. France, Germany, Netherlands and Italy). Over the 20-year patent term of a unitary patent, the renewal fees will be in the region of €35,500. In comparison, the renewal fees for a national bundle patent in all 17 UPC states would exceed €100,000 over that same period.
No. The territory of your unitary patent is set at the time the request for unitary effect of your newly granted European patent is registered with the EPO. Your unitary patent is enforceable in the countries that have ratified the UPCA at that moment. The territorial coverage of a unitary patent will stay the same for its entire lifetime, irrespective of any subsequent ratifications of the UPC Agreement after the date of registration of unitary effect by the EPO. Hence, there will be no extension of the territorial coverage to other Member States which ratify the UPC Agreement after that date.
No. The unitary patent is a single (indivisible) legal title extending to all UPC countries. This means that the unitary patent cannot be transferred for the individual countries. It can also not be limited, revoked or abandoned in respect of some UPC countries. However, you can license with respect to some or all UPC countries..
For European patents granted after 1 June 2023, the patentee can opt for registration as a unitary patent instead of validation in the participating countries. In this way, the patent will be immediately valid in all UPC countries. It should be noted that the unitary patent does not extend to the whole EU, since some EU countries do not participate in the UPC. Separate national validations will thus remain necessary for EPC contracting states that are not UPC countries. These countries include Albania, Cyprus, Croatia, Czech Republic, Greece, Hungary, Iceland, Ireland, Monaco, North Macedonia, Norway, Poland, Romania, San Marino, Serbia, Slovakia, Spain, Switzerland/Liechtenstein, Turkey and the United Kingdom.
The process of filing, examination and grant of European patents before the European Patent Office (EPO) will remain the same.
A European patent application is filed with the EPO, and an examination is performed by the EPO. Once the European patent is granted, the European patent may be registered as a unitary patent by filing a request for unitary effect. European patents granted after 1 June 2023 are eligible.
After the grant of the European patent (from 1 June 2023), the period for filing the request for unitary effect is only one month. The request must be filed with the EPO. No extension of this term is available. If the patent language is EN, a translation of the entire patent specification in an EU language must be filed in that same period. If the patent language is German or French, the translation must be in English. Failure to file the request for unitary effect within the one month time limit will prevent the European patent from becoming a unitary patent. Failure to file a translation is a correctable deficiency in the request.
An important difference pertains to the renewal fees. For a European patent that is no unitary patent, renewal fees must be paid yearly to each national patent office separately if the patent is to be kept in force (both with and without opt-out). On the other hand, only a single renewal fee needs to be paid each year for a unitary patent.
Countries that can participate in the UPC Agreement must be EU member states. The UPC and unitary patent system start with the 17 UPC countries listed above.
Several signatory states have not (yet) ratified the Agreement. These include Czechia, Ireland, Greece, Cyprus, Hungary, and Slovakia. These may still become UPC countries at a later stage.
Some EU member states (e.g. Spain, Poland) have not signed the UPC Agreement and are not participating.
Non-EU countries cannot participate, regardless of whether they are participating in the European Patent Convention (EPC) or not. These include the United Kingdom, Norway, Switzerland, and Turkey. Following Brexit, the UK is no longer an EU member state.
The following UPC countries will participate in the new system when it starts:
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Portugal, Slovenia and Sweden.
The European patent with unitary effect or, shortly, the unitary patent is an alternative to the existing process of validating a European patent in individual countries. It is therefore not a ‘new’ patent, but an option to extend the validity of a granted European patent across all UPC countries in a single stroke.
The unitary patent is a single (indivisible) legal title extending to all UPC countries. This means that the unitary patent cannot be transferred in part. This also means that the unitary patent can only be enforced in a centralized court (the UPC). The UPC is also the only court where a holder of a unitary patent can start an infringement case. Within the opposition period (9 months from the grant of the European patent), third parties can request revocation of the unitary patent before the EPO. After the expiry of the opposition period, the UPC will also be the only court where revocation proceedings can be started against a unitary patent. A decision of the UPC will have effect for all UPC countries.
The European Commission considers patents a vital element of the Internal Market to achieve growth through innovation and increase the international competitiveness of European business. It considered that the efficiency, affordability and legal certainty of the patent system should be enhanced. Thereto, a pan-European patent protection and dispute settlement was to be created, based on two pillars: a European Union patent (the unitary patent) and a unified jurisdiction for patent disputes (the UPC).