The unitary patent represents the biggest change to the IP landscape in Europe since the Community Trade Mark (now EUTM). Even if you’re not in a patent heavy industry, it has significant potential ramifications.
Currently patents are granted on a country by country basis. Under the new system, a patent applicant will have the option to apply for a “unitary patent" or "UP” designation which means their patent will be granted as a single right across all UP states.
This means a single patent application can offer protection in all EU countries apart from Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania and Slovakia. Countries such as the UK, Switzerland and Norway which are not part of the EU are automatically excluded.
The UP dramatically simplifies the patent process and reduces the costs of obtaining pan-European protection. This means that UP applicants have a single fee for renewals and recordals for a licence, change of ownership etc which covers a large percentage of European countries.
How do you apply for a unitary patent?
It is simply a box that is ticked on application to request the patent takes “unitary effect” across all UP states. Speak to your patent attorney if this is of interest. We work with some excellent partner patent attorneys in the UK and beyond - if you need a recommendation, let us know.
Transitional provisions
By early 2023 the UP filing system should be in place. The exact start date is to be confirmed.
Similar to the Brexit transition period, the European Patent Office (EPO) is currently considering what key transitional measures need to be in place in order to help guide applicants into the new system.
What does this mean in practice?
The Unitary Patent offers substantial potential costs savings for applicants and could be extremely useful for SME businesses. It is important to understand the significance of the process and the associated risks - for example, under the UP system, you could have an UP invalidated in a single application whereas currently someone attempting to invalidate a patent has to apply on a country by country basis which tends to mean that patent portfolios are less vulnerable to a central attack.
For those considering future European patent applications, it may be possible to defer making a decision on whether to opt for an UP until there is a clearer understanding of what the system means in practice. The key is to obtain professional advice at as early a stage as possible to ensure that rights and strategic opportunities are not missed.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com
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