Unitary patent in the EQE
Can Unitary patent be tested in the EQE?
The official answer is: it might be, yes. See the question and answer on the EPO’s FAQ site:
However, it is likely that there will be no Unitary patent related questions in the EQE 2024. So, don't spend too much time on studying that topic.
If you do want to spend a short time to refresh your UP knowledge, focus on EPO's Unitary patent guide and the Rules relating to Unitary Patent Protection (UPR). This will also be helpful in real life, even if you never become a UPC representative. These topics include for example the request for unitary effect, the filing of the translation, time limit for filing the request, legal remedy and renewal fees.
Link to UPR: https://www.epo.org/en/legal/up-upc/2022/upr.html
Legal questions
It is always more fun to practice legal topics by answering questions, so you can also find some legal questions below. (I drafted them.)
Please feel free to post your answers in the comment section.
QUESTION 1
1. European patent application EP-X was filed on 1 December 2018. Date of the intention to grant is 1 July 2023, the decision to grant is dated 10 October 2023. The B1 document was published in the European Patent Bulletin on 22 November 2023.
When can the request for unitary effect be filed at the earliest? What is the last day for filing the request for unitary effect?
QUESTION 2
2. European patent application EP-Z was filed on 1 December 2018. Date of the intention to grant is 1 July 2022, the decision to grant is dated 15 November 2022. The B1 document was published in the European Patent Bulletin on 14 December 2022.
When can the request for unitary effect be filed at the earliest? What is the last day for filing the request for unitary effect?
QUESTION 3
3. Today, on 10 January 2024, immediately after the mention of the grant of the patent in the Bulletin, your client is instructing you to file the request for Unitary effect and to additionally validate the patent in Greece, Iceland, Norway and Turkey. They have limited budget. The European patent application was filed in English.
What language would you choose for the full translation of the patent (to be filed with the request for Unitary effect)?
QUESTION 4
4. Your client has just received EPO's decision to grant their patent.
They have limited budget and therefore have instructed you to request Unitary patent. Their main markets are Western European countries, mainly Austria, Belgium, France, Germany, Luxembourg and the Netherlands. Your client is having ongoing negotiations with regard to the possible transfer of their patent in respect of France and Germany only. They intend to remain the patent proprietor in the other countries.
What do you advise?
QUESTION 5
5. A Hungarian and an Austrian natural person jointly filed a European patent application in Hungarian language four years ago. The language of proceedings is German. The decision to grant the patent was issued about 3 weeks ago. The patent is about to be granted and they are planning on requesting Unitary effect.
They already have a Hungarian translation of the accepted text ready to be filed.
Can they already file the translation today?
Are they entitled to a compensation? If not, why not? If so, what is the amount?
Don’t scroll down before you answered the questions. :)
Answers
ANSWER (QUESTION 1)
European patent application EP-X was filed on 1 December 2018. Date of the intention to grant is 1 July 2023, the decision to grant is issued on 10 October 2023. The B1 document was published in the European Patent Bulletin on 22 November 2023.
When can the request for unitary effect be filed at the earliest?
10 October 2023, once the decision to grant was issued
What is the last day for filing the request for unitary effect?
1 month from 22 November 2023 –> 22 December 2023 (Friday) - Rule 6(1) UPR
ANSWER (QUESTION 2)
European patent application EP-Z was filed on 1 December 2018. Date of the intention to grant is 1 July 2022, the decision to grant is dated 15 November 2022. The B1 document was published in the European Patent Bulletin on 14 December 2022.
When can the request for unitary effect be filed at the earliest?
What is the last day for filing the request for unitary effect?
Tricky questions, because UP can only be requested for patents granted after 1 June 2023 –> UP cannot be obtained for this patent - Art.18(6) of Regulation (EU) No 1257/2012
(Unitary effect can always be requested, but the consequence of Art. 18(6) in this case is that it will be refused.)
ANSWER (QUESTION 3)
Today, on 10 January 2024, immediately after the mention of the grant of the patent in the Bulletin, your client is instructing you to file the request for Unitary effect and to additionally validate the patent in Greece, Iceland, Norway and Turkey. They have limited budget. The European patent application was filed in English.
What language would you choose for the full translation of the patent (to be filed with the request for Unitary effect)?
Greek. Greece is the only EU country from the list. A full translation is being prepared for the traditional validation anyway, so there are no additional costs.
ANSWER (QUESTION 4)
Your client has just received EPO's decision to grant their patent.
They have limited budget and therefore have instructed you to request Unitary patent. Their main markets are Western European countries, mainly Austria, Belgium, France, Germany, Luxembourg and the Netherlands. Your client is having ongoing negotiations with regard to the possible transfer of their patent in respect of France and Germany only. They intend to remain the patent proprietor in the other countries.
What do you advise?
Traditional EP validation, since a UP could only be transferred as a whole!
ANSWER (QUESTION 5)
A Hungarian and an Austrian natural person jointly filed a European patent application in Hungarian language four years ago. The language of proceedings is German. The decision to grant the patent was issued about 3 weeks ago. The patent is about to be granted and they are planning on requesting Unitary effect.
They already have a Hungarian translation of the accepted text ready to be filed. But we need an English translation.
Can they already file the translation today? It can be filed now, since the decision to grant has already been issued. However, we need an English translation, because the language of proceedings is German.
Are they entitled to a compensation? If not, why not? If so, what is the amount? Yes, both are natural persons with a residence in an EU member state. Amount is EUR 500.