The way to the European Unitary Patent has been a long one – it dates back to 1970, and there has been a debate going on all this time about whether business and science in the European Union need a unified system for protection of inventions. The process has finally been completed and the system will start operating on 1 April 2023.
How will the European Unitary Patent work?
The European Unitary Patent will be based on the European patent system under the rules and procedures of the European Patent Convention. After a European patent is granted, it will be possible to request unitary effect in the participating EU Member States. The European Unitary Patent will not replace the usual procedures for the protection of inventions – it will be another tool available to inventors.
The application for the issuance of a European Unitary Patent will have to be submitted to the European Patent Office.
Where will the European Unitary Patent apply?
The European Unitary Patent will be valid in all contracting EU Member States that have agreed and ratified the documents of the Unified Patent Court. Currently there are 17 such Member States, but their number is expected to increase to 25 in the future. Spain, Croatia and Poland are not parties to the agreement, and Britain is no longer a party to the agreement after Brexit. It is important that the European Unitary Patent will be valid in all countries with the patent claim of the same scope. The protection of the European Unitary Patent will not be extended to other countries joining later.
The European Unitary Patent system can be used together with other systems if protection is sought in other non-contracting states, but double protection – when an invention is protected under several systems in the same territory – will not be possible.
How much will the European Unitary Patent cost?
The European Unitary Patent is based on the European patent application, so the initial costs are the same. There is no additional charge for the application for granting a European Unitary Patent. The renewal fees are calculated to match the amount payable in 4 most popular countries using the European Patent System.
The economic utility is also conditioned by the fact that the documents of the European Unitary Patent will not have to be translated to the language of each protection state, nor will the help of national representatives be needed.
It has been estimated that the European Unitary Patent will save up to 8% of the previous costs, and some of them (e.g., translation costs) can be reimbursed.
Will it be necessary to translate the European Unitary Patent?
Unlike the current European patent system, European Unitary Patent documents will not need to be translated into another language. However, there will be a 6-year transition period at the start of the system, during which a translation of the patent claim into English will have to be provided if the original language was French or German, or into another EU language if the original language was English.
Part of the translation costs for SMEs, individuals, non-profit organizations, universities and public research organizations will be reimbursed.
Does the European Unitary Patent procedure require a representative?
Patent owners having their residence or principal place of business in a Contracting State may act in their own name. Patent owners who do not have a place of residence or principal place of business in a contracting state will be required to appoint a representative and act through him in all procedures (the only exception is the payment of taxes). It is important to take care of a special form of authorization.
Why should I use the European Unitary Patent?
The European Unified Patent can be an economically useful tool if the aim is to protect the invention in at least 4 EU Member States in which protection is requested most often. Lower validity costs sound like an important argument – after submitting an application for a European Unitary Patent, you will no longer have to pay validation fees for each state. There will also be far fewer administrative steps and costs – transfers, licenses, changes and, importantly, renewals will be administered in just one registry, so there will be fewer various steps in different states, various stamp duties and service fees for representatives operating in different states.
Translations, which make a very significant part of the process of patenting an invention, will no longer be required.
The Unified Patent Court, where disputes will be resolved, is also presented as an advantage of the system – there will be no need to raise disputes in different states. However, in certain cases it can also be seen as a big disadvantage – one process can harm the entire strategy of protecting the invention and become an advantage for your competitor.
The European Unitary Patent will help when you seek equal protection for the entire content (claim) of the invention in all countries. If you need to react in each contracting state to the patents valid in that specific territory and adjust your own accordingly, the system is not suitable for you. The system is also not suitable for you if you plan to transfer part of the rights to the invention to third parties.
The European Unitary Patent will be more valuable later – since the number of EU states is currently not maximum and cannot vary with respect to already granted patents, applications that will be submitted at this time will not have full territorial protection.
What should I do if I want to obtain a European Unitary Patent?
In such a case, an application must be submitted to the European Patent Office and, upon receipt of the European patent, an application for granting a European Unitary Patent must be submitted within one (1) month.
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