The patent prosecution and litigation landscape in Europe is about to see the biggest change since the European Patent Office was established by the European Patent Convention in the 1970s. These changes are the result of the Unified Patent Court Agreement, which was signed way back in 2013 and which is now, finally, being brought into effect. There are two things to consider, related but separate: first, the Unitary Patent, and second, the Unified Patent Court or “UPC”.
The Unitary Patent is a single patent that will cover multiple countries. European patents, as opposed to unitary patents, are already granted by the European patent office and nothing will change so far as European patent applications and their examination are concerned. When a European patent is granted, the patent proprietor must decide on the countries in which the patent will be validated. The European patent then has the same effect in each of those countries as a national patent. What will change is that, instead of validating granted European patents on a purely national basis, proprietors are going to be able to choose to validate the patent as a “unitary patent” – a single patent that will take effect across the combined territory of all the countries that are participating in this new system. The unitary patent will then be enforced and defended as a single patent.
Not all European Patent Convention states are participating. At present, participation in the new system is restricted to member states of the European Union – indeed, it is an EU Regulation that provides for the unitary effect of unitary patents. All the EU countries are in, save for Poland, Spain and Croatia. Where a patentee wishes to have protection in other European Patent Convention states, such as the United Kingdom, Switzerland, Norway and Turkey, or wishes to validate a European patent in UPC participating countries but not as a unitary patent, the patent will be validated on a national basis just as it is now.
