Come 2023 and European Union patent landscape will witness a major transformation in the form of the Unitary Patent and the Unified Patent Court. This new system promises to make it easier and quicker for companies to obtain patents in the EU. It is especially deemed favorable for boosting the IP- intensive goods and services sector as well as promoting investment in innovation. Below we throw light on the meaning, benefits, and challenges of this long-awaited phenomenon.
Currently, the European Patent Office (EPO) issues patents centrally but they have to be validated and maintained individually in each country. With the advent of the Unitary Patent, the patent protection will automatically be available in 25 EU countries once granted by the EPO. The pre-grant process remains the same, only the effectiveness of the patent extends to more countries.
The Unified Patent Court (UPC) will be a central body dealing with the infringement and validity issues of the Unitary and European Patents. It will have the authority to decide on revocation actions and counterclaims, provisional measures and injunctions, actions for declaration of non-infringement, private prior-use actions and actions for damages or compensation regarding UPs. At present, the respective national courts of each country are responsible for ruling on the above matters.
Based on the revised European Patent Convention (EPC 2000), the Unitary Patent Guide guides companies and inventors with an outline of the UPC patent application process. It does not go into great detail about the issues or specifics of the process but rather offers advice to smoothen the process through various stages.
In order to assist applications that have reached the final phase of the grant procedure the EPO has introduced two transitional measures for the early adoption of the UPC patent.
The first is for the early request of the unitary patent. The applicant will be notified via communication by the EPO with the choice of being granted a Unitary Patent ahead of its formal implementation. If the applicant is interested in the offer, they must pay the fee for the grant and publishing and translate the claims into two official languages of the EPO. Applicants may file for a unitary effect online by filling out Form 7000 available on the EPO website. Early requests for unitary effect can only be submitted as of 1 January 2023.
The second is for a request to delay the decision to grant a European patent. A Unitary Patent may only be granted on or after the date of application of Regulation (EU) No 1257/2012. In order to make the applicant eligible for a Unitary Patent, the EPO will delay the issuing of the patent to a date that is on or immediately after the commencement of the Unitary Patent system.
The applicant must first obtain a European patent before filing for a unitary patent. Upon the grant of a European patent, the applicant may request a unitary effect at the EPO. The timeline for filing the request is within one month of the mention of the grant in the European Patent Bulletin.
An annual renewal fee of 500 Euros is applicable to maintain a Unitary Patent, payable to the EPO. Since a unitary patent does not require to be validated in member countries, its overall cost too would be much less as compared to a classic European patent.
Translations for applying for Unitary Patent will only be required for a period of 6 years (extendable up to 12 years). The following are the translation requirements:
The EPO has also introduced a compensation scheme that will cover the cost of translation for SMEs, non-profits, universities, and natural persons in the pre-grant stage. Once the transitional period expires, there will be no need for translations to obtain a Unitary Patent.
The UPC will comprise three wings- a Court of First Instance, a Court of Appeal, and a Registry. The Court Of First Instance will be headquartered in Paris with local and regional divisions in other countries. The seat of the Court of Appeals will be in Luxembourg.
The Unitary Patent and the Unified Patent Court promise several benefits for patent seekers in the EU. Some of them are:
Every transition from the status quo is subject to challenges and risks, and the Unitary Patent system is no exception. Summarized below are the trepidations associated with the new system:
The Unitary Patent is soon to turn into a reality in Europe. Being a new and untested system, there is uneasiness in the market regarding its true nature. But since there is no avoiding it, companies must take the crucial decision of analyzing their patent strategies to decide whether they want to opt for the Unitary Patent or stick to the current system. This decision will depend on various factors like geographic presence, costs v/s coverage, the strength of the patent, etc. It is best to consult a knowledgeable firm to determine the direction your business should steer in the given scenario.
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