European patent with unitary effect
Das European patent with unitary effect (also referred to as Unitary Patent) is a supranational intellectual property right in the patent law of the European Union, which enables uniform patent protection within participating Member States. It is based on Regulation (EU) No 1257/2012 and supplementary rules, and represents a significant step towards harmonization of industrial property protection in Europe.
Development and legal background
Historical development
The system of the European patent with unitary effect is the result of decades of efforts to create cross-border, cost-effective, and low-administration protection for technical inventions within the EU. Traditionally, patents could be centrally filed based on the European Patent Convention (EPC), but they had to be nationally validated. With Regulation (EU) No 1257/2012 and the Agreement on a Unified Patent Court (UPCA), the foundation was laid for the Unitary Patent and the corresponding court system.
Legal basis and scope
The European patent with unitary effect is legally founded mainly on:
- Regulation (EU) No 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection
- Regulation (EU) No 1260/2012 on translation arrangements
- Agreement on a Unified Patent Court (UPCA)
Only EU Member States participating in the so-called enhanced cooperation may participate. Currently, not all EU Member States are part of the system.
Subject matter and scope of protection
Definition and legal effect
The European patent with unitary effect is a European patent that, upon application by the patent holder, is granted uniform protection for the participating Member States. The effect of the patent thus simultaneously and identically extends to all the participating countries.
Distinction from the classical European patent
In contrast to the classical European patent, which after grant represents a bundle of national rights, the Unitary Patent exists as a unitary right for several countries, without national fragmentation and with uniform effect throughout the entire territory of the participating States.
Filing and procedure
Requirements for unitary effect
A European patent can be endowed with unitary effect if
- it has been granted for all participating Member States;
- a corresponding request is submitted to the European Patent Office (EPO) within one month of publication of the grant notice;
- the required translations are submitted in accordance with Regulation (EU) No 1260/2012.
Administrative procedure at the EPO
The European Patent Office administers the Unitary Patent. This includes acceptance, examination, and publication of applications for unitary effect as well as registration.
Legal effects, limitation and lapse
Rights and prohibitions
The European patent with unitary effect grants its holder the exclusive right to prohibit third parties from using the patented invention within the participating countries. Infringements can be pursued by means of claims for damages and injunctions.
Limitation, revocation, and lapse
Unitary patents may be
- limited or surrendered upon request by the holder (in accordance with the EPC);
- revoked upon request by a third party or ex officio by the Unified Patent Court;
- lapsed due to expiry of time or non-payment of renewal fees.
The lapse or revocation takes effect uniformly in all participating countries.
Administration and renewal fees
Administration and register management
The EPO maintains a central register for Unitary Patents. Changes, transfers, licenses, and other rights are recorded in the register and are effective in all participating States.
Fee structure
Renewal fees are collected centrally by the EPO and cover protection in all participating countries. The amount is based on the average fees of several larger EU countries and aims to ensure attractiveness for small and medium-sized enterprises as well as research institutions.
Enforcement: Unified Patent Court
Establishment and jurisdiction
With the Unified Patent Court (UPC), a separate court procedure was established. The court has exclusive jurisdiction for infringement and nullity actions, enabling uniform and binding decisions for all participating States.
Advantages of centralized dispute resolution
- Elimination of parallel national proceedings
- Speed and efficiency
- Binding effect of decisions for the entire area of protection
Language arrangements and translations
Filing and the entire procedure are carried out in one of the official languages of the EPO (German, English, French). For the registration of unitary effect, supplementary translations are required in accordance with Regulation (EU) No 1260/2012.
Advantages and challenges
Advantages
- Uniform legal effect in numerous EU countries
- Simplified administrative procedure
- Centralized dispute resolution
- Cost advantages for continued protection after grant
Challenges
- Different accession statuses of Member States
- Costs with wide or limited geographical coverage
- Complexity of transitional arrangements
Relationship to international treaties and other patent systems
The European Unitary Patent operates alongside the classic EPC system; applicants choose after grant whether they want unitary protection or the classic, nationally fragmented patent. Parallel international patent applications (e.g., under the Patent Cooperation Treaty, PCT) remain unaffected.
Literature and further legal sources
- Regulation (EU) No 1257/2012
- Regulation (EU) No 1260/2012
- Agreement on a Unified Patent Court (UPCA)
- European Patent Convention (EPC)
Conclusion
The European patent with unitary effect represents a milestone in the harmonization of patent law in Europe. With its central administration and dispute resolution system, it contributes to strengthening the competitiveness, legal certainty, and efficiency of the European innovation area. At the same time, questions remain open regarding the full integration and acceptance throughout the EU.
Frequently asked questions
What legal steps are required to bring a European patent with unitary effect into force?
In order to make a European patent with unitary effect (also called a Unitary Patent) legally effective, after the grant of the European patent by the European Patent Office (EPO), a request for unitary effect must be filed with the EPO. This request must be submitted no later than one month after publication of the mention of the grant in the European Patent Bulletin. A further legal requirement is that the European patent has been granted for all participating Member States of the Unitary Patent, and that identical sets of claims are in force in these States. Additionally, the translations required at grant must be submitted in accordance with Regulation (EU) No 1260/2012: For patents in German or French as the language of proceedings, a translation into English is required; if the language of proceedings is English, a translation into German or French must be submitted. The unitary effect is conferred only once all formal and substantive requirements are met and the EPO has confirmed the registration. Once unitary effect is conferred for the participating States, validation under the classical procedure is excluded for those States.
What are the legal consequences of unitary effect for the judicial enforcement of the patent?
With unitary effect, the patent is subject to uniform law regarding infringement and nullity actions for all participating EU countries. Exclusive jurisdiction for such disputes principally lies with the Unified Patent Court (UPC). Infringement claims or declarations of invalidity therefore apply simultaneously in all participating States. This means that litigation only needs to be conducted once and the judgment takes effect throughout the entire territory. For such disputes, unitary patent law takes precedence, supplemented by the national law of the Member State as auxiliary law. Actions outside the UPC, such as before national courts, are only permitted in exceptional cases, such as an opt-out or for validations without unitary effect. Centralized enforcement and appeal are regarded as core advantages of the Unitary Patent.
How does the unitary patent affect licensing from a legal perspective?
A unitary patent may be subject to a unitary license for all participating States. Legally, however, it must be noted that licensing is generally governed by the substantive national law of the country in which the license is to have effect. Registration of licenses must be carried out with the EPO, which publishes license information in the European Patent Register. Partial and exclusive licenses may be effectively granted, either for individual States or for all States with unitary effect. Disputes arising from license agreements fall under the jurisdiction of the UPC to the extent that they concern the Unitary Patent. At the same time, the patent holder remains entitled to license rights to individual States, so long as this does not conflict with the unitary character of the patent.
Can subsequent amendments be made to the European patent with unitary effect?
After registration of the unitary effect, changes to the scope of protection—such as limitation, amendment, or surrender—are only permitted in accordance with the procedures laid down in the European Patent Convention (EPC) (e.g., limitation or opposition procedures). Partial withdrawal of the unitary effect for individual States is not legally possible; the patent always has effect for all originally participating States. The surrender of rights in individual countries can, however, occur by a complete withdrawal of the patent, but not selectively. Changes to details regarding ownership, licenses, or representation must be registered with the EPO and are subject to the relevant regulations.
Are there specific legal requirements regarding payment of renewal fees for the Unitary Patent?
For the European patent with unitary effect, a single renewal fee is payable to the EPO, which covers all participating States. The legal basis for this is Regulation (EU) No 1257/2012 and the EPO fees schedule. There is no obligation to pay further national renewal fees in the participating countries. The deadlines and modalities are essentially the same as those for the classical European patent, with lapse of the Unitary Patent for all states occurring automatically upon failure to pay. By contrast, in non-participating states (e.g., Spain, Croatia, Poland) national renewal fees remain due if validation took place.
What is the position of the law regarding priority and divisional applications under the European patent with unitary effect?
Legally, the European patent with unitary effect may claim priority from an earlier application, just like any other European patent, provided the conditions under EPC Art. 87 et seq. are fulfilled. A divisional application is also possible under the EPC rules. If a divisional application is accompanied by a request for unitary effect, the same procedure applies as for the parent application. The unitary effect may be established for the same participating States, provided the request is timely and the formal requirements before the EPO are met.
What legal remedies are available against the decision to refuse unitary effect?
If the EPO considers that the application or the requirements for unitary effect have not been met, a decision subject to appeal is issued. An appeal may be lodged with the EPO within the time limit set out in Rule 97 EPC. The legal review in the appeal procedure covers compliance with all formal and substantive requirements, especially regarding the applied-for States, the submitted translations, and compliance with the application deadline. If the appeal is not successful, further appeal to the Court of Justice of the European Union may be available, provided fundamental questions of European Union law are concerned.
