European Unitary Patent – Coming Soon

The European Council in March 2011 voted to allow the 25 European Union member states to establish a “Unitary Patent System”.

At the present time, once a European patent is granted by the European Patent Office (EPO), it then has to be validated in every EPO member state for which the patent owner seeks patent protection.

The future unitary patent will be automatically valid throughout the EU member states participating in the enhanced co-operation scheme in the EPO language in which it was granted.  Translations for validations will no longer be required.

This is a significant change in practice and will assist patent owners in reducing the cost of gaining broad patent coverage in EPO member states.

The existing system is not being replaced, but rather supplemented.  After the European Patent is granted, the patent owner will be able to select from four options:

(a)   A European patent with individual territorial protection in the designated states; or

(b)   A Unitary patent with unitary territorial protection in all the states participating in the enhanced co-operations scheme; or

(c)   A combination of (a) and (b) to account for those states not belonging to the enhanced co-operation scheme.

(d)   A combination of (b) and national filings in non unitary territorial states.

The grant procedure for the Unitary Patent:

One of the additional features of the Unitary Patent system is the creation of a single patent litigation system.

A Unified Patent Court will have exclusive competence in respect of actions relating to the validity or infringement of a European unitary patent.

This will eliminate the risk of multiple patent lawsuits in different member states concerning the same patent, as well as the risk that court rulings on the same dispute might differ from one member state to another.

The Unitary Patent and the Unified Patent Court are expected (perhaps optimistically) by the EU to be operational sometime in the first half of 2014, approximately 18 months from now.  As with most things European, there is not always broad agreement on the way forward, and the 30 year long held promise of a “unitary” European patent is no exception.  It is likely that Europe will see the introduction of the scheme in the foreseeable future, although expectations for an early 2014 introduction may be somewhat delayed.

This presents some future options for patent applicants who are currently filing PCT applications or provisionals.  If you would like further advice on the Unitary Patent System please contact Ross McFarlane of Phillips Ormonde Fitzpatrick.