Unitary patents in brief
The new system – an overview
A unitary patent (or “European patent with unitary effect”) will be a single patent right which will provide patent protection across all EU member states who are participating in the unitary patent system. The new unitary patent will supplement, and not replace, the existing system of patent protection in Europe so that unitary, national and traditional European patent rights will all co-exist.
Unitary patents will be obtained via the existing application process for European patents i.e. by making an application and prosecuting it centrally before the European Patent Office (EPO) until a decision is made that the patent should be granted (or not). It is only once the European patent has been granted that the patentee must either register the European patent as a unitary patent or continue via the traditional route of validating the European patent in each designated country of interest as nationally enforceable rights. This can be contrasted with the application process for national patents which are applied for and prosecuted individually in each country in which a right is desired.
Unlike national and traditional European patents, which are enforced (and challenged) on a country-by-country basis, a unitary patent will provide uniform protection and equal effect in all member states participating in the unitary patent system. In other words, a pan-European infringement action can be brought across most EU member states in a single set of proceedings, and pan-European relief (e.g. a preliminary injunction) can be sought.
Key take away points
Unitary patents may be attractive to patentees because they will be substantially cheaper to maintain than an equivalent portfolio of European and/or national patents affording the same geographic coverage. They may also prove easier, quicker and potentially cheaper to enforce. Yet, save for the cost advantages, these benefits may be mitigated by the uncertainty surrounding the jurisprudence of the newly established Unitary Patent Court, and the potential for unitary patents to be revoked centrally by the UPC after grant. We consider the potential impact of unitary patents and the UPC on patent filing strategies in more detail here: How to re-evaluate your patent strategies?