The European Unitary Patent – October 2015 Update

Background

A unitary patent will be a European patent which covers all the EU member states with the exception of Spain, Poland and Croatia which are currently not participating in the initiative.

Once a European patent application has been allowed by the European Patent Office (EPO), the applicant will have a choice of whether to request “unitary effect” such that the European patent covers all of the participating member states, or alternatively, to validate the European patent in one or more states where protection is desired, in accordance with current procedure.

The first unitary patents will not be granted by the EPO until a new court called the Unified Patent Court (UPC) comes into existence. For this to happen, an agreement must be ratified by thirteen member states including the UK, Germany and France. Ratification is ongoing and is expected to be completed by spring 2016. The ability to request “unitary effect” will follow shortly afterwards.

Ratification update

Portugal has become the eighth country to complete the necessary legal procedures for ratification of the UPC Agreement.

It is also understood that Finland is likely to ratify by the end of 2015. The Netherlands, Lithuania, Italy (which is now participating) and Estonia are also believed to be progressing toward ratification.

France has already ratified the agreement, but the UK and Germany are expected to hold back deposit of their instruments of ratification until the UPC is ready from a practical perspective, which is expected to be June 2016 with a view to the UPC opening at the start of 2017. Accordingly, unitary patents should be available at the start of 2017.

EPO adopts "Top 4" proposal for Unitary Patent renewal fees

The EPO has adopted a “Top 4” proposal for unitary patent renewal fees. A majority of the EPO and participating EU Member States voted in favour of this proposal, thus rejecting the alternative “Top 5” proposal.

The “Top 4” countries (i.e. the countries in which European patents are most often validated) are Germany, France, the UK and the Netherlands. Under the “Top 4” proposal, the lifetime cost of renewing a unitary patent would be around the same as for renewing a classical European patent in Germany, France, the UK and the Netherlands.

The EPO has suggested that, for the first ten years - the average lifetime of a European patent - the cumulative cost of renewing a unitary patent will be €4685.

Please see press release here.

UK announces London location of UPC

IP Minister Baroness Neville-Rolfe has announced here that the UK government has signed a lease on prime office space in the newly built Aldgate Tower, near the heart of the City.

This will be the home of the London branch of the UPC’s central division and the UK’s local division. The facilities are currently under design, but are expected to include a super-court capable of accommodating the largest hearings.

If you have any questions concerning the unitary patent, please get in touch with your usual contact at Swindell & Pearson Ltd or Simon Foster at [email protected]. Simon is an associate and is based at our Derby office.