Fundamental and long-awaited changes make patent protection easier

The European Commission launched a new system for regulating patent protections, establishing a new Unitary Patent and Unified Patent Court. The changes will benefit companies and inventors in the European Union by facilitating the process for obtaining patents and enforcing their protection.

What is a Unitary Patent?

The new system provides for the establishment of a Unitary Patent, which will be regulated under the Unified Patent Court. Europe’s Unitary Patent is a new additional option for companies and inventors seeking to obtain patent protection in Europe. The European Commission has stated that the Unitary Patent is a legal title providing uniform protection across all participating countries. The one-stop-shop validation procedure provides huge cost advantages and reduces administrative burdens.

The “classic” European patent must be validated in each country where it is granted. It will have the same effect as a national patent granted in that country. The practice of exercising the rights derived from the patent may vary depending on, for example, ongoing litigation taking place in the specific country.  In contrast, the Unitary Patent will remove the need for such validation processes.

Areas of protection: currently 17 countries

The Unitary Patent will provide unified protections in all EU countries that have ratified the Agreement on a Unified Patent Court (UPCA), including all three Baltic countries. Currently, 24 EU Member States have signed this agreement, however only seventeen Member States (Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia, Sweden) have ratified the agreement. The remaining seven EU Member States are likely to ratify the UPCA soon.

Comparing national patent, European patent, and Unitary Patent

A national patent is granted in a specific country or region based on a national patent application. It is approved by the responsible national authority. For example, if the patent application is submitted (and approved) in Latvia, the patent will be granted in Latvia.

The “classic” European patent, on the other hand, must be submitted to and approved by the European Patent Office (EPO). With a European patent, a single patent application in one of the three official EPO languages (English, French, German) grants patent protection in multiple countries. However, the applicant must specify the countries where it wants the patent to be protected. The patent then must be individually validated in those countries after the European patent is granted. The requirements for the validation can vary from country to country.

The Unitary Patent will be an additional option, existing alongside the national and “classic’’ European patents – it will neither exclude nor encompass the national and “classic” European patents. The process for obtaining a Unitary Patent will be based on the same process as a “classic” European patent granted by the EPO. Meaning, the first step to obtaining a Unitary Patent will be to receive a “classic” European patent. Next, the patent proprietor can choose to file a request for unitary effect. This is obtained in a single and straightforward procedure carried out centrally by the EPO. The process results in protection in those EU Member States, which have ratified the UPCA. Obtaining a Unitary Patent will therefore presumably be less complex and expensive.

About the Unified Patent Court

The Unified Patent Court will cover both Unitary Patents and “classic” European patents granted in one or more of the UPCA Member States. The Court has international jurisdiction established in accordance with Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Where applicable, on the basis of the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Court decisions and orders will be enforceable in any contracting Member State.

The Unified Patent Court’s Court of First Instance will have multiple local and regional court divisions, including regional divisions in the capitals of each Baltic country. The Court of Appeal will be housed in Luxembourg. The language of proceedings before any local or regional division of the Court of First Instance will be the official EU language of the state hosting the relevant division. In the Baltics it will be possible to litigate in the local official languages of Estonian, Latvian, and Lithuanian. Litigation may also be possible in the official language designated by states sharing a regional division. The language of proceedings at the Court of Appeal will be the language that was used in proceedings before the Court of First Instance for the case.

Key takeaways

After the Unitary Patent system entered into force on 1 June 2023, patent proprietors have three options for protecting their invention – the national patent, “classic” European patent, and Unitary Patent. If a patent proprietor wishes to protect their invention in several EU countries, the new system is a great option to consider.