The Commencement of the Unitary Patent adaption in Europe as of the 1st of June 2023

The entry into force of the Unitary Patent system now marks a major step in the completion in the cohesion offered by the single market and an historic development for the protection of intellectual property.

In 2012, EU countries and the European Parliament agreed on the ‘patent package’ – a legislative initiative consisting of 2 regulations and an international agreement that lay the ground for the creation of unitary patent protection in the EU.

The package consists of

• a regulation creating a European patent with unitary effect ('unitary patent')
• a regulation establishing a language regime applicable to the unitary patent
• an agreement between EU countries to set up a single and specialised patent jurisdiction (the 'Unified Patent Court')

The Unitary Patent system brings a host of substantial improvements for users everywhere, including cost reductions, streamlined procedures, increased transparency, and enhanced legal certainty.

Users can now apply for a single Unitary patent – a European patent with unitary effect - through a one stop shop procedure, subject to a single renewal fee in a single currency and litigate under a single legal system before the Unified Patent Court (UPC). The UPC, which also commences its operations now, which is propably the most important aspect of the Unitary Patent allows for a centralised litigation system for patents a reality and allows users to file cases at the European level.

Access to the Unitary Patent remains open to all EU member states. So far, seventeen states - Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden – have joined, with additional EU member states anticipated to participate in the future. As far as Cyprus is concerned, the political decision to join the Unified Patent system has already been taken and the necessary measures are being taken to implement this decision.

In accordance with the Registrar of Patents, the economies of the member states currently participating generate an estimated combined GDP of more than EUR 12 trillion (corresponding to almost 80% of the entire EU’s GDP) and incorporate a population of nearly 300 million people.

The new Unitary Patent further solidifies Europe’s standing as a crucial global market for innovation and investment by offering a further option for patent protection in EU member states, in addition to the classical European and national patents. The entry into operation of the new system in Europe is expected to benefit micro-entities, such as start-ups, individual inventors and research centres. The step marks the single most important development in the European patent system in the last fifty years since the signing of the European Patent Convention on 5 October 1973, a landmark that will be celebrated later this year.

According to the European Patent Office, since the Europeans Patent Convention’s entry into force on 7 October 1977, inventors and innovating companies have been able to obtain European patents by means of a centralised patent granting procedure. The EPO grants a European patent after centralised examination of the European patent application, saving inventors and innovating companies the cost of filing national patent applications with the national offices of EPC contracting states while ensuring the high quality of the patents granted.

Under the current rules though, a European patent granted by the EPO must be validated and maintained individually in each country where the patent proprietor wishes it to take effect leading to increased complexity and costly processes.  Validation requirements differ between countries and can lead to high direct and indirect costs, including translation costs, validation fees (i.e. fees due in some member states for publication of the translations) and associated representation costs, such as the attorney fees charged for the administration of the patent (i.e. payment of national renewal fees). These costs can be considerable and depend on the number of countries where the patent proprietor wishes to validate the European patent. 

Unitary Patents remove the need for complex and costly national validation procedures and according to the EPO: 

• The EPO is in charge of the technical operation of the Unitary Patent and acts as a one-stop-shop, allowing for a simple registration of a Unitary Patent. 
• No fees are due for the filing and examination of the request for unitary effect or for registration of a Unitary Patent. 

• No post-grant translations will be required after a six-year transitional period. During this period, a translation will be required for information only and will not have any legal effect. 
• For EU-based SMEs, natural persons, non-profit organisations, universities and public research organisations a new compensation scheme covers costs related to the translation of the patent application if it was filed in an official EU language other than English, French or German. They are paid a lump sum of EUR 500 when their Unitary Patent is registered. 
• Unitary Patents are not subject to the currently fragmented renewal fee system: there is only one procedure and one deadline, all payments are made in euros and there is no obligation to use a representative. 
• The renewal fees have been set at a very competitive level and are particularly attractive for the first ten years, the average lifetime of a European patent. Applicants also save on indirect costs. The more countries a patent proprietor wants to validate their European patent in, the greater the savings by opting for a Unitary Patent. 
• All post-grant administration is handled centrally by the EPO, further reducing costs and administrative formalities. 

• The online register includes information on the legal status of Unitary Patents – notably on licences and transfers. This encourages technology transfer and investment in innovation. 
• Unitary Patents confer truly uniform protection since the substantive patent law – particularly the rights conferred by the Unitary Patent and any limitations of these rights and the remedies available in cases of infringement – has been harmonised in the UPC Agreement. 

The 17 states in enhanced cooperation which already ratified the Agreements and will participate in the Unitary Patent when it starts are: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Sweden.