The European Unitary Patent – January 2016 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. A European patent with unitary effect is commonly referred to as a unitary patent.

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 update

Finland has now deposited its instrument of ratification in Brussels. Finland is the ninth member state to complete this step, the others being Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal and Sweden.

Therefore, ratification by two more countries, in addition to the UK and Germany, will bring the total to the 13 required for the UPC system to come into effect. The UPC Agreement will come into force three months after the deposit of the relevant instruments of ratification.

It is thought that the UK and Germany will ratify the agreement toward the end of 2016, such that the UPC Agreement will come into force early in 2017. It should then be possible to request that a granted European patent has unitary effect.

Unitary patent “ready to go”

Following the EPO Select Committee’s meeting in December, in which it adopted a series of rules relating to unitary patents, i.e. European patents with unitary effect, the EPO has announced that the unitary patent is “ready to go”.

Benoit Battistelli, the EPO President, declared: "With the adoption of these rules today, the preparations for the unitary patent are complete. We are now legally, technically and operationally ready to deliver the unitary patent. The only remaining step is the opening of the UPC and the finalisation of the ratification process at national level”.

Accordingly, once the UPC agreement comes into force, which I expect to be early in 2017, the EPO will be in a position to start granting European patents with unitary effect.

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.