What is the Unitary Patent?
Unitary Patents, also known as European Patents with unitary effect, give the patent holder exclusive legal rights over their invention in the European Union (EU) countries which have opted into the scheme. They’ve been created to make the filing and enforcement of a patent across Europe more straightforward and cost-effective.
Between June 2023, when Unitary Patents were first introduced, and June 2024, more than 27,000 of them have been registered. Yet, they might not always be the best option for patent protection in Europe.
Understanding the difference between a standard or traditional European Patent and a Unitary Patent will help you select an option that best matches commercial needs. This means weighing up cost, enforcement, patent vulnerability, and whether you want to risk engagement with the Unified Patent Court (UPC).
European Patents vs Unitary Patents
There’s often confusion about the similarities and differences between traditional European Patents and Unitary Patents. However, understanding the specifics is essential to helping clients get the most from their patent investment.
Filing process
Whether you want a traditional European Patent or a Unitary Patent, the process always starts by filing a European Patent Application at the European Patent Office (EPO). It is then examined and granted there. The EPO centralises this system for both types of patents. Once granted, you can choose to have a traditional European Patent and select the individual countries you want to file in, or go for a Unitary Patent.
A European Patent may be validated in any of the 39 European Patent Convention (EPC) member states, according to the applicant's preference. It then becomes a set of (usually identical) national patents. This is the traditional process. It is shown on the left-hand side of the diagram below.
In contrast, when a Unitary Patent is selected, it gives a single set of protections across all the countries participating in the Unitary Patent scheme. This is shown on the right hand side. It is important to note that the traditional route still needs to be used for countries that are not participating in the Unitary Patent scheme.
It is also important to note that the patentee can opt to use the traditional route for all the countries in which they are interested- it is not mandatory to use the Unitary Patent for Unitary Patent countries.
Countries covered
This is the main difference between European and Unitary Patents. European Patents can be validated in any EPC member country. This includes all current EU Member States and extra countries such as the UK, Norway and Iceland. Applicants can choose which EPC countries to validate their European Patent in.
In contrast, the Unitary Patent was intended to be an “EU patent”, but some EU Member States have not participated, including Spain, Croatia and Poland. Unitary Patents only offer protection in the countries that are part of the Unitary Patent scheme, not all countries in the EU or EPC. There is no option to apply for a Unitary Patent in certain countries and not others. It is none or all.
Below, we have shown the countries which the traditional European Patent can cover (left), and the countries participating in the Unitary Patent scheme (right).
Enforcement
Historically, patent holders had to enforce their European Patent in the national court where their rights had been breached. With the creation of the Unitary Patent, a new court was created - the UPC (Unified Patent Court). The court is the only place where Unitary Patents may be litigated.
That said, if a patentee has a patent that was validated nationally in a country that is now part of the Unitary Patent scheme, they have a choice. By default, the patent must be litigated in the UPC rather than the national court. However, such patents may opt out of the UPC and revert to the national courts. Note that this needs to be done before any legal action begins.
So, for example, if you have decided to validate your European patent in Germany (without getting a UP), you have a choice. You can leave it within the jurisdiction of the new Unified Patent Court (the default), or you can “opt out” to make sure the patent can only be litigated via the German national courts.
What are the benefits of a Unitary Patent?
The Unified Patent Court Agreement (UPCA) was introduced to reduce costs and simplify the patent validation and enforcement process for applicants. Unitary Patents can also bring significant benefits, including:
Protection for an invention in several European countries under a single granted patent right, rather than having a clutch of individual national patents
The ability to enforce the patent across the whole of the Unitary Patent zone using the UPC, which can grant relief such as an injunction and damages across all these countries at the same time, avoiding parallel litigation in multiple locations
Reduced costs in gaining a Unitary Patent compared to nationally validated ones, with only one translation required and no official fee
A single, standard fee to renew the Unitary Patent, rather than separate payments for renewal in each country
What are the drawbacks of a Unitary Patent?
Unitary Patents have been created to make the protection of an invention under European law easier. However, they have limitations, including being unavailable in some EU or EPC countries. Other disadvantages make them unsuitable for particular circumstances:
Less flexibility with jurisdiction and scope of claims, as the same rights are applied in all countries under the Unitary Patent Scheme
One invalidity claim can kill a Unitary Patent in all countries participating in the scheme. With a European Patent, separate invalidity claims must be brought in individual countries. This arguably makes the Unitary Patent more vulnerable than individual national patents
Infringement and validity cases can only be brought in the UPC which is relatively new, untested and hasn’t heard as many claims as national patent courts
Is a Unitary Patent the right option?
Unitary Patents are great for individuals who want to protect their inventions easily and cost-effectively across several specific countries. However, if they want to alter the scope of claims for each country, require protection in fewer than four participating countries or are unsure about the decision-making of the UPC, then this might not be the best option.
Before choosing either a traditional European or Unitary Patent route, attorneys, individuals and companies need to understand the terms, restrictions and jurisdiction of each. Qualified and experienced in filing applications across Europe, the Grey Wolf IP team can advise you on the best way to protect your invention on the continent based on your commercial needs.