Unitary Patent System in EU

This article has been authored by Bhavya Sharma, a student BBA, LLB from Jindal Global Law School during her internship at Origiin IP Solutions LLP. In this article, she analyses and lists out advantages of Unitary Patent System in EU

After decades of legislations attempting to introduce a unitary patent system amongst the European countries, this feat was finally achieved on June 1^st, 2023, when the European Commission welcomed the launch of European Unitary Patent System across 17 nations of the European Union, representing about 80% of the Union’s GDP[1]. This is a landmark achievement as this System will significantly simplify the patent processes across the EU borders. The Agreement of Unified Patent Court (UPCA) was signed on 19^th February 2013 by 24 EU member states. The legislation did not come into effect until June 1^st, 2023, due to many political factors influencing the landscape of the EU such as Brexit (2020) and the issues posed by the German constitutional court with respect to this agreement. Finally, 17 EU countries have ratified this agreement and a detailed legal framework has been laid down to be followed to efficiently execute this system.

The System comprises of the Unitary Patent Protection (UPP) and the Unified Patent Court (UPC) together[2]. The Unitary Patent System (UPS) will strengthen the EU’s innovation and competitiveness in the patent market by introducing a unified registration and enforcement of patents across the 17 countries that have ratified this agreement. It will provide a “one-stop-shop” for patents in Europe. This brings immense benefits to the companies and innovators. This will allow them to receive a ‘unitary’ patent for their innovations and inventions, valid across all participating member states[3]. This will reduce the costs of filing separate patents in different countries. The earlier level of costs for renewing patents every 10 years separately in member states amounted to approximately €29,000. With the introduction of UPS, the costs would come down to €5,000[4], which is a significant reduction which will incentivize companies to file their patents in the member EU nations. Another benefit of this cost reduction is that it will overcome the cost gap for filing patents between European countries and other major players such as USA or Japan.

The most obvious benefit of this agreement is the time-reduction as it has become a “one-stop-shop” for registration of patents[5]. The System also introduces uniformity amongst the Member states making the entire legal process streamlined and more effective. For this very purpose, the Agreement also established the Unified Patent Court (UPC). It is an international Court that has exclusive jurisdiction in “classic” European patents and European Patents with unitary effect[6]. Its jurisdiction in “classic” European patents is not guaranteed and can be excluded entirely and brought to national courts or any competent national authorities instead normally, as well as during the transitional period of seven years. The Court comprises of a Court of First Instance, a Court of Appeal and a Registry. Additionally, a Patent Mediation and Arbitration Centre is established to resolve matters amicably[7]. This entire legal framework will ensure smooth functioning of the System and increase the efficiency of the patent registration, filing, enforcement and renewal of patents in Europe and make the patent landscape more fertile for new innovators and businesses. It will enhance the competitiveness and quality of patents emerging from the EU, while also attracting foreign investments into the EU.

Procedure for filing a ‘unitary’ patent

As is the regular procedure, the applicant must first file a European Patent Application at the European Patent Office (EPO). The EPO then follows standard procedure which remains unchanged, it checks all the necessary details and conducts an examination, if it yields positive results then it will lead to the grant of a European Patent. Then within one month, the applicant has the option of requesting the EPO to grant unitary effect for the participating nations.

In the moment the Unitary Patent System enters into force, two transitional periods are predicted when the patent reaches its final phase of grant procedure. The first transitional measure will allow applicants to file requests for the Unitary Patent even before the start of the Unitary Patent System. Once the System starts, provided that all other prerequisites for the patent registration are met, EPO will register the patent with unitary effect. If there are any deficiencies, the EPO can ask for corrections or reject the request.

The second transitional phase will provide the possibility of the applicant requesting a delay in the issuing of a grant of a European patent until the Unitary Patent System comes into effect. This will postpone the date of issuing of grant until it can get unitary effect, thereby including previous patent requests in the purview of the Unitary Patent System as well[8].

The Unitary Patent System also overcomes the linguistic barriers faced by applicants while filing patent registrations in other countries as they have to translate the text every time. A lot of money, time and additional resources are lost in the process of translation and may lead to ambiguity after translation. With the introduction of the Unitary Patent System, the UPC will conduct all the hearings with regards to unitary patents and the proceedings will take place in English, German or French[9]. While this brings uniformity to the whole process and overcomes the translation issues, the use of a few standardized languages may lead to issues amongst locals who do not conduct business in these languages.

Under this System, since a unified patent is granted in 17 nations, if any violation is to be found, the applicant may lose the protection of the patent in all these states if it is successfully challenged. This is a risk that must be taken up by the applicants which may lead to huge losses to companies and businesses.

The Unitary Patent System is a great stride to achieving maximum efficiency and uniformity in the field of patents in Europe. Many governments in the past and legislations have attempted to bring in this change from 2000, but it is only 23 years later that it has become possible. As of now there are 17 EU nations participating in this system, however the UPCA has provisions to include up to 25 nations of the EU as well. If the UPS is implemented properly and functions smoothly, one can hope that the entire EU is united in the future making the patent landscape highly welcoming for newcomers as well as existing players in the industry.

Author: Bhavya Sharma, BBA, LLB, Jindal Global Law School

Please contact us at info@origiin.com to know more about our services (Patent, Trademark, Copyright, Contract, IP Licensing, M&A of companies)

Subscribe to YouTube Channel HERE

Join LinkedIn Group: Innovation & IPR

WhatsApp: +91 74838 06607

[1] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3004

[2] https://www.mondaq.com/india/patent/1185830/the-unitary-patent-system

[3] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3004

[4] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3004

[5] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3004

[6] https://www.unified-patent-court.org/en/court/presentation

[7] https://www.unified-patent-court.org/en/court/presentation