The Unitary Patent System was created to make patent protection in the EU easier and cheaper. Before this, inventors had to apply separately in each country. Now, one application gives protection in many EU countries. The system also introduced the Unified Patent Court (UPC), which handles disputes in a central way. This change helps inventors save money and avoid legal confusion. However, the system still has problems, such as high costs, court complexity, and confusing overlap with national and European patents. This paper looks at both the benefits and challenges of the new system.

Unitary Patent System

The Unitary Patent System(UPS) established on June 1^st, 2023, has created a significant shift in the process of patenting in the EU. The system has introduced a single valid patent across multiple EU Member states therefore reducing the administrative and financial risk associated with obtaining patent protection in Europe.

Previously, applications would be validated and maintained through separate patents, meaning that each member state had to grant patent following the provisions established under the European Patent Office (EPO) . However, this process was long and strenuous including translation requirements, validation formalities and the appointment of local patent attorneys. This also led to the of protection for inventions to only a few jurisdictions.

The system has held the inventors to obtain unitary protection by a single legal process . This has broadened the geographic scope and cost-effectiveness of patent coverage in Europe.

This reform is expected to strengthen the EU’s position in global innovation, foster cross-border collaborations, and promote research, development, and industrial investment.

Benefits of UPS

More innovation as patent protection has a wider geographic scope
More competition amongst businesses which therefore leads to a reduction in prices
More job opportunities and a stronger economy
As inventor’s receive patent protection there is a surety for customers that the products have a good quality assurance [1]

What is a Unitary Patent

A unitary patent is a single legal patent that allows EU Member States that have agreed to the agreement to apply in one place for patent protection instead of going to a long and strenuous process of applying for patent protection in each EU state.

Right now, 18 EU countries are part of this system. These are: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia, and Sweden. More EU countries may join in the future. But non-EU countries (like the UK, Switzerland, or Turkey) cannot be part of the unitary patent.

The unitary patent is based on two EU laws and an international agreement (the UPC Agreement) signed by these EU countries. This is based on the European patent granted by the European Patent Office.

Since 2023 an owner can apply for a patent grant in 2 ways:

By a unitary patent wherein the patent is granted in all 18 EU Member States (that have agreed to the agreement)
By using the old system where the owner would have to receive permission from each country – this is called “bundle” of national patents . Countries like UK and Spain which have not agreed to the agreement use this.

The process to apply for and examine a European patent at the EPO stays the same. It’s only after the patent is granted that you make the choice.

This means a patent owner can:

Use the unitary patent for the 18 EU countries that joined, and
At the same time, validate the same European patent in other countries separately.^[2]

Advantages of Unitary Patents

The main goal of Unitary Patents was to make patent protection easier and cheaper. It especially focused on encouraging more innovation in Europe.

Avoids the long and strenuous process of applying for patent protection in each EU state for patent grant
No need to pay renewal fee separately in each country
No need for multiple translations – Only English or one EU official language
No extra fee for the unitary request- normal EPO application fees are enough[3]

History of Unitary Patent System

In 1978, the European Patent Convention (EPC) stated the importance of patent protection in Europe. Around the same time discussion about a Community Patent was being discussed wherein a single court could grant patent protection to all EU inventions .However this implementation was not enforced.

In 2004, EU Member states could not agree in terms of language rules for the new system. This also led to the idea of the community patent being dropped.

By 2010,a new proposal for the unitary patent system was enforced. It also stated a special court should be established. By 2012 the member states agreed on the creation of a unitary patent and the language to be used , only Spain and Italy choose not to join at this stage.

By 2013,all Member States except Spain and Poland signed the agreement for a Unified Patent Court, which would handle both unitary patents and traditional European bundle patents. For the system to be enforced 13 Member States had to agree to the proposal.

In 2015,Spain had challenged the regulations, but this was rejected by the European Court of Justice . Italy had agreed to join the system. More countries had started ratifying the agreement including the UK.

In 2017, Hungary decided to drop out of the system as the system was not in accordance with its constitution. Germany had filed a legal case challenging the system as the president was told not to sign an agreement until a resolution was found.

In 2020, UK due to Brexit stated it would not join stating that the country wanted legal independence. In March, the German Constitutional Court said the original vote to approve the UPC was invalid due to the lack of members. A new vote happened in November and December 2020, and this time it passed with the required majority.

Germany had made two final legal complainants , however in 2021 this was rejected by the German Court.

By 2022, Austria became the 13^th country to approve the Protocol on Provisional Application . This allowed the system to begin preparations, like setting up the legal framework, IT systems, and hiring judges.

In 2023, Germany had officially ratified the agreement. The UPC started working on 1^st June 2023, and the unitary patent system officially began.^[4]

Key Differences from Unitary Patent System from the traditional European Patent System

Feature	Unitary Patent	Classic European Patent
Geographical Scope	One patent covers up to 25 EU countries (currently 17 ratified)	Must be validated individually in each EPC country
Application Process	Single application at EPO, followed by a request for unitary effect	Application at EPO, then validation needed in each desired country
Translation Requirements	Fewer translations required (cost saving)	Expensive due to multiple translations and local legal requirements
Cost	Lower initial costs due to centralization and fewer translations	Higher costs due to country-by-country validation and legal representation
Maintenance Fees	Single renewal fee for all covered states	Pay separate renewal fees in each country where validated
Flexibility in Dropping Markets	No flexibility—must maintain all or none	Can drop individual countries to save on fees
Legal Enforcement	UPC has central jurisdiction (enforcement and validity decisions apply across all member states)	Legal action and invalidation handled separately in each country
Risk of Invalidation	One ruling by UPC can invalidate protection in all covered countries	A ruling in one country does not affect others
Licensing	Uniform treatment—no regional licensing flexibility	Can license rights differently across countries
Judicial System	UPC is new and untested (may have unpredictability)	National courts like in France or Germany are experienced in patent law
Best For	SMEs seeking cost-effective, simple protection across many markets	Large corporations, especially in pharma and high-stakes industries seeking strategic flexibility and reduced invalidation risks[5]

How does the Unitary Patent System Work ?

New Strategic Choices for Patent Owners

Since the enforcement of the system in 2023 patent owners now must make two important decisions during the time of accessing patent grants in Europe.

The first decision is choosing between a unitary patent or national validations. Unitary patents mean that the patent owner does not have get separate patent protection from each country. The other way is applying for patent protection separately in each country. It should be noted one cannot use both methods for the same country for example if the patent owner chooses national validation, they cannot also choose unitary patents in the same country. For other European countries that are not in the unitary patent system, you can still validate the patent nationally, no matter what you choose.

It should also be noted that once one decides to opt for a unitary patent they cannot out of the UPC. This in turn means the UPC must be involved in the process of obtaining an unitary patent. One must also use the UPC for national patents in countries that join the UPC in the future.

The next major decision is regarding “opting out” of the UPC . This decision typically arises when one chooses to from national validation instead of a unitary patent . If the patent owner does not opt out the European patent falls under the UPC once granted.

Typically, a patent owner will choose to opt out , especially when important patents are present, to avoid the risk of losing the patent in many countries at once.

The UPC is a new court that covers a wide range of countries, and its decisions can be implemented in each country as well. However, it should be noted that one legal case can cancel the grant of patent in all UPC countries . Also, as the system is new the decisions can tend to be less predictable. That is why some owners choose to opt out their valuable patents from the UPC system.^[8]

Filing an Opt-out

As per Article 83(3) of the Agreement on a Unified Patent Court (UPCA) [9]an opt out is when a patent is removed out of the UPC system. This is typically done if someone has a classic European Patent or a Supplementary Protection Certificate (SPC) based on a classical patent. Once opted out, the UPC will not have any authority over legal cases related to that patent.

Conditions for a valid opt-out:

All countries covered by the patent must be included in the opt-out.
You can only opt out before any legal case has started in the UPC about that patent.
Opt-outs must be filed through the UPC’s Case Management System (CMS), following Rule 5 and Rule 5A of the UPC’s Rules of Procedure[10].
If you’re filing many opt-outs at once, you can use an API for secure bulk submission.

Can you change your mind?

One can withdraw the option to opt out if no case had been started in a national court regarding the patent. One can also correct a mistake , remove an unauthorised opt-out, or withdraw an unauthorised withdrawal through the CMS.

Unified Patent Court

Previously if a patent owner wanted to receive a patent grant in Europe, they would have to receive permission from each country the wanted to receive the grant from, for example a decision by a French court on the validity or infringement of a particular European patent currently has no effect in Germany. This created “parallel litigation ” which can in turn increased costs for the parties concerned as well in resulting in inconsistent decisions from different courts.

The countries signed up to the Unified Patent Court have all agreed to transfer jurisdiction over European patents and SPCs from their national courts to a single, centralised court.

The emergence of the UPC had caused a significant decrease in parallel litigation and inconsistent due to its enforcement of a single court , to hear patent disputes.

What will be litigated in the Unified Patent Court?

Since its establishment all matters concerning unitary patents have been handled by the UPC . Within contracting states, the UPC has the right to hear matters concerning traditional patents, especially in relation to jurisdiction, validity and infringement . This also includes matters revolving around SPC’s.
Due to the UPC agreement any matter concerning revocation will now be undertaken by the UPC instead of France. This also involves any infringement of European patents in France.
It should be noted that during the transition period (, patent matters could still be dealt by the national courts. Also, it should be noted that any patent owner can “opt out” of the UPC during this time .
National patents however will always be litigated by national courts.

Advantages and Disadvantages of the Unified Patent Court

Advantages	Disadvantages
Single litigation	Due to the UPC being a new establishment there could be the result of unpredictability in the initial years and limited precedents
A central revocation	Bifurcation due to the differences in hearings regarding patent validity and infringement
A wide scope of experienced judges from Europe	Forum Shopping · Some parts of the court may seem to favor patentees more than others. · People may choose where to file based on where they think they’ll win. · But as the Court of Appeal makes more decisions, things should become more uniform across divisions.[12]

Current Challenges

In 2023 the establishment of a new kind of patent emerged called the unitary patent emerged. This patent would reduce the burden of patent owners regarding receiving patent grants in Europe, they would no longer have to receive permission from each country to get patent instead they would have to appear to the UPC to receive grants. The patent covers 25 countries in the EU. The system was also enforced to decrease parallel litigation and inconsistencies in decisions amongst different courts.

Currently the grant of a European patent also presents to be a challenge regarding translations and the difference of cost between countries , the UPC helped reduced this.

However, there are still some major problems:

There are too many patent system (National patents, European patents and unitary patents) .This makes it confusing for patent owners.
Even the UPC has cut the translations cost the annual renewal fees remains high .It could cost around €40,000 to €50,000 for 10 years – which is much more than in the USA or Japan. Even for small firms, the cost might still be around €20,000, which is too high.
Complicated Court System- The court system for patent disputes will be split between France, Germany, and the UK (before Brexit).This could lead to forum shopping, where companies choose the court that favours them.[13]

Conclusion

The Unitary Patent System is a major improvement for inventors in Europe. It offers simpler, faster, and wider patent protection, which can help encourage innovation. The Unified Patent Court also helps reduce legal delays and conflicting decisions. However, the system still has drawbacks, like expensive renewal fees, unclear legal rules, and too many overlapping systems. These issues make it hard for small companies to fully benefit. For the system to succeed, it should become more affordable, clearer, and better organised. Solving these problems will make the UPS more effective and attractive to users across Europe.

Author: Ishika Sarah Koshy , REVA University, Bangalore

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Unitary Patent Systems in Europe