The European Commission actively promotes the implementation of the European patent with unitary effect (the ‘unitary patent’) and the establishment of a new patent court. The unitary patent is a legal title that will provide uniform protection across all participating countries on a one-stop-shop basis, providing huge cost advantages and reducing administrative burdens. The Unified Patent Court will offer a single, specialised patent jurisdiction.
The benefits of unitary patent protection for Europe
Unitary patent protection will make the existing European patent system simpler and less expensive for inventors (individuals, companies, and research organisations). It will end complex validation requirements and drastically limit expensive translation requirements in participating countries. Consequently, it is expected to stimulate research, development and investment in innovation, helping to boost growth in the EU.
Unitary patent protection will also protect inventions better than the current system. Due to the prohibitive costs involved in the national validation and maintenance of European patents, many inventors currently only patent their inventions in a handful of countries. This makes inventions less valuable as the lack of protection in other countries makes copying them easier.
Unitary patent protection and the Unified Patent Court
In 2012, EU countries and the European Parliament agreed on the ‘patent package’ – a legislative initiative consisting of 2 regulations and an international agreement that lay the ground for the creation of unitary patent protection in the EU.
The package consists of
- a regulation creating a European patent with unitary effect ('unitary patent')
- a regulation establishing a language regime applicable to the unitary patent
- an agreement between EU countries to set up a single and specialised patent jurisdiction (the 'Unified Patent Court')
The regulations implement enhanced cooperation in the creation of unitary patent protection. All EU countries participate in this enhanced cooperation except for Spain and Croatia. In 2015, Italy joined the enhanced cooperation on unitary patent protection, which includes 25 EU countries as of November 2021.
Following the adoption of the 2 Regulations in 2012, the contracting countries, except for Poland but with the addition of Italy, proceeded with the signature of the Agreement on a Unified Patent Court (UPCA). The process for the ratification of the agreement is ongoing. As of November 2021, 16 EU countries have ratified the UPCA, with Germany being ready to do so. The unified jurisdiction will deal with disputes relating to classical European and unitary patents, for which it will have exclusive jurisdiction in these countries.
After decades of negotiations on the unitary patent, on 24 June 2015, EU countries agreed on the level of renewal fees of the unitary patent. The renewal fees will be equal to the sum of national renewal fees in 4 countries (Germany, France, the United Kingdom and the Netherlands). This means that an inventor protecting their innovation with the unitary patent will pay less than €5 000 in renewal fees over 10 years for a territory that covers 26 EU countries, instead of the current level of around €30 000, which has proven to discourage companies from patenting in Europe.
The competitive price of renewal fees is a key element to ensure the attractiveness of the unitary patent to companies, especially start-ups. It will also reduce the gap between the cost of patent protection in Europe compared with the US, Japan and other third countries.
A workshop took place in May 2015 to hear the views of potential users of the unitary title:
In November 2015, EU countries reached an important agreement on the financial distribution of the revenue of unitary patents. The agreement fixes the distribution key for an initial period of operation with 50% of fees retained by the EPO (European Patent Office) while the remainder (minus an administrative charge) is distributed among the participating countries according to a formula that takes account of the GDP and the number of applications filed from that country. The distribution arrangements are subject to regular reviews. The distribution key will be subject to revision every 5 years.
In June 2015, EU countries participating at the select committee on the unitary patent explicitly requested the Commission’s help to minimise the cost of patent protection for small and medium-sized enterprises (SMEs). The Commission’s single market strategy also identifies the need to support SMEs when filing, using and enforcing intellectual property (IP) rights, especially patents.
Therefore the Commission is working on designing a set of measures to help SMEs requesting and managing unitary patents and other European IP rights. We will be working in the coming months on
- affordable European litigation fee insurance
- a specialised mediation and arbitration service focusing on the needs of innovative SMEs
- the use of structural funds for rewarding innovative SMEs using IP, and in particular patents
- connecting SMEs with local IP experts in order to provide them with real and concrete guidance for their IP portfolio
- developing preventive IP infringing schemes targeted at SMEs (memoranda of understanding between suppliers, intermediaries and rights-holders to prevent or to disincentivise IP infringement behaviours)
The Commission will work together with the European Patent Office (EPO) and the Office for Harmonization in the Internal Market (OHIM), EU countries and the European Parliament to design those measures and implement them across the European Union.
With regard to the UPC Agreement, only Germany needs to deposit its instrument of ratification for the unitary patent system to start operating (3 months later), but this will not take place before operational preparations are sufficiently advanced under the provisional application period of the UPC Agreement.
Following Austria’s ratification of the Protocol on the Provisional Application of the UPC Agreement, the related provisional application period started on 19 January 2022. The new system is expected to start operating on 1 June 2023, initially covering 17 EU countries.
The preparatory team of the Unified Patent Court has prepared an implementation roadmap that depicts all the key activities and milestones of the UPC in the coming months.
Important information for users
With a view to supporting users in an early uptake of the Unitary Patent, the EPO will introduce two transitional measures applicable to European patent applications having reached the final phase of the grant procedure. These measures will be made available from 1 March 2023 (during the so-called 'sunrise period') until the launch of the unitary patent system.
In parallel, during this 'sunrise period', the Unified Patent Court will make it possible to file early opt-out requests in respect of non-unitary European patents (and related applications, and SPCs).
- Regulation (EU) No 1257/2012 of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection
- Council regulation (EU) No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements
- Agreement on the Unified Patent Court
- Unified Patent Court Agreement ratification by EU country
- Rules relating to Unitary Patent Protection (23 March 2022)
Parliament approves EU unitary patent rules, 11 December 2012
- Press release from the European Parliament
- Statement on the patent package by former Commissioner for Internal Market and Services, Michel Barnier
Commission proposals implementing enhanced cooperation, 13 April 2011
- Press release: Commission proposes unitary patent protection to boost research and innovation
- Proposal for Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection
- Proposal for Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements
- Impact Assessment
- Summary of the Impact Assessment
- FAQ: Commission proposes unitary patent protection