Unitary Patent & Unified Patent Court

A unitary patent is a new type of patent that has effect in multiple European Union member states. At the moment, 18 EU member states are participating in the system, including Germany, France, the Netherlands, Finland, and Sweden. More EU countries are expected to join the system over the coming months and years.

As a "European patent with unitary effect", to give it its full, official name, a unitary patent is a single patent that can be used to prevent third parties from performing infringing acts throughout the majority of the EU. At the same time, if a unitary patent is found to be invalid, it is revoked in its entirety, i.e. across all of the participating countries. This contrasts with the existing national validation system, in which a granted European patent becomes a “bundle” of entirely separate national rights after grant, each of which must be enforced, and challenged, individually before national courts.

The unitary patent does not replace the existing European patent system, or even the national validation system – it is a new option as part of the existing system that can itself form part of a bundle of patents, including national patents in countries that are either not an EU member state, such as the UK and Switzerland, or are EU states not currently participating in the system.

The unitary patent does not replace the European patent.

Historically, when a European patent was granted, it had to be "converted" into individual national patents in every European country where protection was desired. This process was (and is) called national validation.

Now, the unitary patent is a new option that can be selected instead of national validation in the countries that are participating in the unitary patent system.

In countries that are not participating in the UP system, such as the UK, Spain, and Poland, national validation remains the only option for obtaining protection based on a European patent.

A unitary patent has effect in all of the countries that are participating in the system at the date of registration of the unitary patent.

At present, the countries that are participating in the unitary patent system are:

Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Romania, Slovenia, and Sweden.

All current EU member states except for Spain, Croatia and Poland are expected to join the system in the coming months and years.

While the number of participating member states will increase, the geographical coverage of existing unitary patents will not. The geographical scope of a given unitary patent is locked in on the date of its registration.

Unitary patents are granted by the European Patent Office (EPO) following the normal examination and grant process for European patents. A “request for unitary effect” with the EPO within one month of grant of the European patent.

In practice this means that the process for obtaining a unitary patent can be seen as a new option in the existing national validation process.

During a transitional period, which will last until at least 2030 and perhaps all the way to 2037, a full translation of the European patent specification must be filed. If the language of the EPO proceedings was English, as is the case for the vast majority of European patents, the specification must be translated into an official language of any EU member state. If the language of the EPO proceedings was French or German, the specification must be translated into English.

This question is perhaps best answered by our interactive unitary patent cost simulator, which can be accessed here.

The cost of a unitary patent can be broken down into three stages:

1. the cost of applying for and obtaining a granted European patent,
2. the cost of requesting and obtaining a unitary patent after the European patent has been granted, and
3. the renewal costs for keeping the unitary patent in force after the unitary patent has been granted.

The European patent application process, up to and including grant of the European patent by the European Patent Office, is not significantly affected by the introduction of the unitary patent. Therefore, in the context of obtaining a unitary patent, the cost of applying for an obtaining a granted European patent is the same as it was before the new system came into effect. 

There is no official fee payable for the grant of a unitary patent, i.e. the request for unitary effect, that is filed with the European Patent Office. Which means that the cost of requesting and obtaining a unitary patent after the European patent has been granted includes only the cost of obtaining a translation of the specification and any service fees for handling the request.

The translation is provided "for information only", i.e. it should not have any legal effect, and can be provided in any official language of an EU member state, even of those that are not participating in the UP system, like Spanish or Polish. If the granted European patent will be validated in Spain or Poland as well, then it may be possible to avoid translation costs entirely by using the same translation for both the Spanish or Polish national validation and the unitary patent.

Finally, the ongoing renewal fees payable each year after the unitary patent is granted are roughly equal to the combined renewal fees in France, Germany, Italy, and the Netherlands - the four most popular national validation choices of the countries participating in the UP system.

Again, this question is best answered by our interactive unitary patent cost simulator, which allows you to compare the estimated costs for national validation and a unitary patent, can be accessed here.

In general, it can be said that a unitary patent will cost the same or be cheaper than national validation if the unitary patent replaces three or more national validations. While the combined renewal fees for the unitary patent are roughly equal to the combined renewal fees in four countries, when renewal fee service provider fees for paying one renewal fee (for the unitary patent) and three renewal fees (for national validations) are taken into account, the break-even point is closer to three.

However, in the simplest, and most common, case, where a European patent is validated only in the UK, France, and Germany, national validation will continue to be the cheaper option, since the UK is not participating in the UP system.

Translation costs are more complex, as the translations required for national validation vary from country to country. In Germany and France, for example, no translation is required. In Finland and Sweden, a translation of the claims into the local language is required. In Austria and Italy, a full translation of the patent specification is required.

Although the unitary patent requires that a full translation of the European patent specification be prepared (during the current transitional period of 7-14 years), the cost of a translation is, in many cases, not very significant compared to the cost of accumulated renewal fees. Even for longer specifications that would have significant translation costs, it may be possible to reduce or even avoid the costs for a separate translation altogether, for example if a Spanish or Polish translation of the specification that is prepared for national validation in Spain or Poland can be reused for the unitary patent.

Aside from potential cost savings associated with a unitary patent, the biggest advantage of the unitary patent is the ability to enforce the patent across the vast majority of the EU population and economy in a single action before the new Unified Patent Court.

Already within the first year of operation, the Court has shown itself to be competent, well-organised, and a very attractive option for patent holders.

However, there are also disadvantages and risks associated with the unitary patent.

For example, the other side of the pan-European enforcement in a single action coin is that pan-European revocation of the unitary patent is also possible. Unlike nationally validated patents, which have historically needed to be attacked independently before national courts, if the Unified Patent Court considers that the unitary patent is invalid, it is revoked across all participating countries in a single move. 

Furthermore, even though in many cases the overall cost for a unitary patent will be lower, the renewal fees, like the unitary patent, are all or nothing. In other words, it is not possible to reduce the renewal fees that are payable for a unitary patent by dropping protection in some countries, like it is with nationally validated patents. There is therefore some reduced flexibility in the choice of a unitary patent.

If you would like to benefit from the advantages of the new system without having to bear its disadvantages, please have a look at our dedicated UP/UPC filing strategies, outlined above.