What is Unitary patent?

If you heard about the European patent validation process, you know that after the grant of a European patent a so-called validation has to take place in order to have an enforceable right in any of the Contracting States. Validation is a rather time consuming and expensive administrative process. In order to avoid validation (or at least decrease the requirements and steps) and to provide patentees with a more valuable and more unified European patent, the legislators have been discussing the concept of a Unitary patent for a long time. Another objective is to create a single court for litigation of the European patents, called Unified Patent Court. (The Unified Patent Court's decisions will be binding across all contracting EU member states.)

Unitary patent makes the procedures after grant easier, less costly and more legally secure by providing uniform patent protection in all the participating Member States. However, it is not necessarily advantageous for all patent proprietors. Please see the advantages and disadvantages of the procedure in more detail below.

The Unitary patent entered into force on 1st June 2023 and is in effect in 17 EU Member States.

What is Unitary Patent?

Unitary patent is a single European patent with unitary effect in the European Union Member States that have ratified the agreements. The Unitary patent is granted by the EPO under the same rules and procedures as before. (The features of Unitary patents are only relevant after grant.) After a European patent is granted, the patent proprietor can request unitary effect, thereby getting a Unitary patent - without the validation procedure - which provides uniform patent protection in all the EU Member States that signed the agreement.

Thus, the Unitary patent does not affect the EPO's search, examination and granting procedures. The Unitary patent co-exists with national patents and traditional European patents. It does not replace the existing routes, but is an additional option.

How to apply for a Unitary patent?

In order to obtain a unitary effect, patent proprietors have to request the unitary effect at the European Patent Office (EPO) within one month of the date of publication of the grant. The request for unitary effect can be filed already after the issuance of the decision to grant the European patent.

There is no official fee for filing a Unitary patent request. A translation must be filed with the request. (A full English translation if the patent is granted in French or German, or a full translation into any language of the EU if the patent has been granted in English.) However, this translation will be required only in a transitional period, for information only and does not have any legal effect. (After the transitional period, they would like to rely on machine translations.)

Important differences

• A single patent:

  While the European Patent becomes a bundle of national patents after grant, the Unitary patent functions as a single patent. Consequently, it can be maintained, transferred, abandoned or revoked as a whole.

• Annuity fees:

  Similarly to other patents, the patent proprietor has to pay annual renewal fees in order to maintain the Unitary patent. Following from the previous point, annuity fees do not have to be paid before every national patent office separately. There is only one fee, procedure, currency and deadline.
  You can check the exact renewal fees here. Should you only need the patent in 3-4 European countries, you do not necessarily save costs, because the renewal fees of the Unitary patent will be higher than the sum of the renewal fees in the 4 most popular countries (after Brexit, these are: DE, FR, NL, IT). The more countries a classic European patent would have been validated in, the more cost-effective a Unitary patent is.

• Litigation

  A Unified Patent Court (UPC) has been set up as an international court in order to deal with the infringement and validity of both Unitary patents and European patents. Its rulings will apply in all Member States that have ratified the Agreement. So, any litigation will take place centrally, before one court.

• Transfers and licensing

  It is only possible to assign a Unitary patent in respect of all of the participating Member States, however it is possible to license it partially in any of the participating countries.

  Transfers and licences can be registered centrally at the EPO under a single legal regime, instead of through multiple parallel registrations in national patent registers on a country-by-country basis.

• Limitation and revocation

  It is only possible to revoke or limit a Unitary patent in respect of all of the participating Member States. Consequently, even if there is an issue only in a single country, your patent can be revoked in all of the countries if the court decides so.

Advantages of the system

1. Easier procedure after grant

   When requesting Unitary patent, no validation is required (in the countries covered in the Agreement). Thus, no translations and no administrative procedures have to take place in certain countries. The reduced requirement for translation of the granted patent is certainly an attractive feature of the new system.

2. Lower costs

   There are no validation costs and only one renewal fee occurs. The more countries in which the European patent would have been validated, the greater the savings. So, for larger companies who routinely validate their European patents in numerous states, the unitary patent may provide savings.

3. Legally more secure

   Without Unified Patent Court, litigation has to take place in multiple countries, which is expensive and furthermore, there is a risk of diverging decisions and a lack of legal certainty. The Unified Patent Court will enhance legal certainty through harmonised case law in the area of patent infringement and validity, and will harmonise substantive patent law. 

4. Can be combined with the traditional EP system

   You have the option of requesting a Unitary patent and also an EP Patent that has to be validated in the countries that have not ratified the Unitary patent system. The two systems co-exist.

5. Less administration

   All post-grant administration is handled centrally by the EPO, further reducing costs and the administrative workload.

Disadvantages of the system

1. Not all states are members

   In fact, there are only 17 Member States of the Unitary patent out of the 39 EPC Contracting States.

   You cannot completely get away from validation. If you need a patent in countries such as Croatia, Norway, Poland, Spain or Turkey (these countries for example are not members), it will still be necessary to carry out the national validations in these EPC states.

   Furthermore, with the United Kingdom (UK) out of the Unitary patent and Unified Patent Court system, it is even less attractive to patent proprietors.

2. Costs

   The costs are mentioned in the "advantages" section as well. Why is that?

   The costs, such as the renewal fee, of the Unitary patent are more or less equal to the official fees of five Member States. Thus, the costs of a Unitary patent can only be justified if at least 4-5 countries would have been chosen in the traditional validation procedure. (4 or 5 countries other than Switzerland or the UK, because neither Switzerland nor the UK will be part of the new system).

   For patent owners only interested in validating their European patent in a small number of participating Member States, the Unitary patent may not be an attractive option.

3. Single patent

   A Unitary patent is a single patent, so it may be revoked in a single action for all the participating territories before the Unified Patent Court. However, the "traditional EP" is a bundle of national patents, so if it is revoked in one Member State, you still have a patent in all the other Member States where you validated the patent.

4. Litigation costs before Unified Patent Court

   If you request Unitary effect after grant, you must use the Unified Patent Court system, which will be incredibly expensive for SMEs (e.g. for revocation the fee is 20.000 EUR).

   However, after a transition period during which applicants will be allowed to opt-out, Unified Patent Court will be responsible for all the European patents regardless of whether it is a Unitary patent or European Patent.

5. Increase in the number of valid patent rights in the Member States

   The Unitary patent system will result in an extreme increase in the number of valid patents in smaller Member States. Those who validated their patents only in major states so far, will now be given patents in the smaller countries as well, as a “gift”. The inventors and developers in smaller countries may be unprepared for a situation where they have to face a huge number of Unitary patents.

   For example, in Hungary about 4000 European patents are validated yearly but 50-60000 Unitary patents are expected for the same period of time. So, this is a definitely unfavourable situation for Member States with less technological innovative power.

Countries that have not ratified the Unitary patent Agreement

In February 2020, the UK Government decided that the United Kingdom (UK) will not participate in the Unitary patent and Unified Patent Court systems. 

Spain and Croatia have also not ratified the Unitary patent agreements. Non-EU countries like Norway, Switzerland and Turkey will not be part of the Unitary patent system either.

Some EU Member States may decide to ratify the Agreement later. However, even if some countries do so, the coverage of a given Unitary patent will stay the same for its entire lifetime,  irrespective of any subsequent ratifications after the date of registration of unitary effect.

Link to the Unitary patent guide on EPO's website.

Author: Zsofia Pintz
Published: August 2020
Updated: July 2023