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Guide to the Unitary Patent and Unified Patent Court Contents Patent and Trade Mark Attorneys Guide to the Unitary Patent and Unified Patent Court Contents Introduction 1 Part I: The Unitary Patent 2 Part II: The Unified Patent Court 16 Summary: How Dehns can support you 32 Appendix 34 Glossary of terms 38 1 Introduction The biggest change to the European Under the Unitary Patent system, patent applicants patent system in decades is on its will be able to obtain patent protection across a large part of Europe with only one patent. This will way. Soon – possibly as early as the be simpler, and potentially cheaper, than obtaining start of 2017 – it will be possible equivalent protection under the current system. to obtain a single patent covering Enforcing patent rights across Europe should also be multiple EU countries. This will be simpler, as the UPC’s judgments will be enforceable known as a European Patent with in multiple countries. However, the UPC could also make European Patents more vulnerable to validity Unitary Effect, or informally a “Unitary challenges. The new system will also raise a host Patent”. The rights conferred by a of new procedural and cost-related issues. It is Unitary Patent will be enforceable therefore vital to be aware of the new opportunities, through a new supranational court, and new risks, which the new system might pose for the Unified Patent Court (“UPC”). The your business. UPC will also hear challenges to the The Unitary Patent and UPC systems are complex. validity of European Patents, enabling This guide provides a general overview of key aspects invalid patents to be revoked across of these new systems, so it has been necessary to Europe without the need for separate simplify certain features. Within these complicated and as-yet-untested legal systems there can be no litigation in different countries. “one-size-fits-all” approach when deciding whether to opt for a Unitary Patent or deciding how to make use of the UPC. Nevertheless, we hope that this guide provides an accessible overview of the most important points which you should consider. If you require information allowing you to make decisions suited to your own particular circumstances, please contact Dehns for more detailed advice and guidance. Contact Dehns +44 20 7632 7200 [email protected] www.dehns.com 2 Part I: The Unitary Patent What is it? Unitary Patents will protect inventions in multiple countries at once. This is different from the existing system, where patents are granted on a country-by-country basis. 3 What’s changing? Which countries are At present, patent protection across Europe can taking part? be obtained by filing a patent application with the The Unitary Patent was originally intended to European Patent Office (EPO). The EPO examines provide a single patent covering the whole EU, the patent application and, once the application similar to the existing systems for single EU trade is considered to be allowable, grants a “European mark and design registrations. However, to begin Patent”. Despite its name, the European Patent with, the system will come into force without the has to be “validated” separately in each individual participation of all EU countries. European country where patent protection is needed. The current procedure therefore gives rise The legislation establishing the Unitary Patent to a “bundle” of separate national patent rights, system comprises three major parts, referred to as one patent per country, which each take on their the “Unitary Patent Package”. The Unitary Patent own independent existence after validation. These will only be available in countries which sign up to all are sometimes referred to as “bundle patents” or three parts of the Package. “classical European Patents”. As of March 2016, 25 of the 28 EU countries have In contrast to classical European Patents, the Unitary signed up to the complete Unitary Patent Package. Patent will be a single patent which will provide Spain and Poland have remained outside the system protection in multiple countries simultaneously. This for political reasons. Croatia was not an EU member will operate in parallel with the existing EPO system, at the time that the legislation was agreed. However, so for some countries patent applicants will have all three of these countries have the option of joining a choice of opting for a Unitary Patent or instead at a later date. following the classical route. Independent national patent systems will also continue to operate. This means that a Unitary Patent will potentially cover the whole EU apart from Spain, Poland and Croatia. However, at first the scope of the new system is likely to be more limited than this, with more countries joining over time – see below for details. 4 When will the Unitary Figure 1: EU/EPO membership and patent availability Patent be available? Key Although 25 EU countries have signed up to the EU and EPO members: complete Unitary Patent Package, one part of the UP or EP available* Package still needs to be officially approved (ratified) by national parliaments. This is the Unified Patent EU and EPO members: EP available, but not UP Court Agreement, which establishes the new Court. The new system will only come into effect when the Non-EU members which are EPO parliaments of 13 EU countries have ratified this part members: EP available, but not UP of the Package. Those 13 countries must include the Non-EU, non-EPO members: UK, France and Germany. EP available via special agreement, but not UP Non-EU, non-EPO members: As of March 2016, nine countries (including France) neither EP nor UP available have ratified the UPC Agreement and so the UK, Germany and two other countries must still ratify UP: Unitary Patent the UPC Agreement. It is expected that either the EP: classical European Patent UK or Germany will delay final ratification until all * assuming all countries shown ratify UPC Agreement the formal preparations have been completed and until at least 12 of the 13 necessary countries have ratified the UPC Agreement, so that the system will be fully ready for operation as soon as British or German ratification happens. The 13 country milestone will probably be reached in late 2016, which will lead to the new system entering into force in early 2017. The Unitary Patent will at first only be available in countries which have ratified the UPC Agreement. Depending on how many countries ratify the UPC Agreement before the UK and Germany, this means that the Unitary Patent may at first cover only 13 EU countries. More countries are expected to ratify the UPC Agreement over time. This means that Unitary Patents granted in the early years of the system are likely to have a different territorial scope to Unitary Patents granted in later years. 5 6 How can I obtain a participating in the Unitary Patent system, patent applicants will face a choice of converting their Unitary Patent? granted European Patent into a Unitary Patent, or Unitary Patents will be granted by the EPO. The instead validating their European Patent in separate application, search and examination procedures will countries in line with the classical procedure. be identical to the existing system. No additional application fees or formalities will be required The decision on whether to opt for a Unitary Patent during the filing or examination process and no or protection via the classical route only needs to be final decision needs to be taken on whether or not taken when the EPO publishes a “mention of grant” a Unitary Patent is desired until the EPO grants the in the European Patent Bulletin, which happens at European Patent. the end of the EPO’s application and examination procedure. The Unitary Patent system will run in parallel to the classical system as an alternative, rather than If a Unitary Patent is desired, a “request for Unitary replacing it altogether. For countries which are Effect” must be filed at the EPO within one month of the publication of the mention of grant. At the same time, a translation of the whole patent must be provided (see below for details). Figure 2: Grant procedures for Classical and Unitary Patents 1 month Request Unitary Eect Single patent NEW File translation of whole patent covering multiple CURRENT into another language countries 3 months File patent EPO searches and Notification of File translations of claims Grant of patent application at EPO examines application intention to grant into French and German* National validation Individual patents, *assuming application filed in English formalities one per country 7 If a Unitary Patent is not desired, the one month deadline can be ignored and the patent can be brought into force (“validated”) in separate countries The Unitary Patent system will run using the classical procedure instead. Most countries in parallel to the existing system, have a three month validation deadline, starting rather than replacing it altogether from the publication of the mention of grant. In some countries the patent will enter into force automatically. Other countries may require validation formalities such as the filing of further translations, the payment of fees and/or the appointment of a local attorney. If the one month deadline is missed, no extension is available and so a Unitary Patent cannot be granted, but the European Patent can still be validated in individual countries using the classical procedure. 1 month Request Unitary Eect Single patent NEW File translation of whole patent covering multiple CURRENT into another language countries 3 months File patent EPO searches and Notification of File translations of claims Grant of patent application at EPO examines application intention to grant into French and German* National validation Individual patents, formalities one per country 8 What about non-EU countries? After claims translations have been filed in response to the “Notification of Intention to Grant”, and European Patents granted by the EPO can be subject to certain other formalities, the EPO validated in a number of non-EU countries such publishes the “mention of grant” which sets the as Switzerland, Norway, Iceland and Turkey.
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