The Unitary Patent system came into force on 1 June 2023.
Since that date, applicants have been able to elect for a granted European patent to have unitary effect across all participating countries. There are currently 18 participating countries: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia, and Sweden. The UK does not participate, having left the EU.
Several EU countries are not participating in the Unitary Patent system, including Spain, Poland and Croatia. In addition, a number of non-EU countries are contracting states to the European Patent Convention including the United Kingdom, Norway, and Switzerland.
A Unitary Patent is a single, indivisible right that has uniform effect across all participating countries.
By contrast, a “classic” European patent is granted by the European Patent Office (EPO) and then validated individually in selected countries. Such patents exist as a bundle of national rights, rather than a single unified right.
The Unified Patent Court (UPC) provides a centralised forum for litigation relating to European patents in the participating countries, including both Unitary Patents and classic European patents. Unitary Patents automatically fall within the exclusive jurisdiction of the UPC.
During an initial seven-year transition period, lasting until at least 1 June 2030, classic European patents are subject to dual jurisdiction. This means that infringement and validity actions may be brought either before the UPC or before national courts.
During this transition period, proprietors of classic European patents may opt out of the UPC. Opting out removes the patent from the UPC’s jurisdiction, so that all disputes relating to infringement and validity must be brought before national courts only.
Once the transition period expires, the UPC will have exclusive jurisdiction over all classic European patents that have not been opted out in respect of the participating countries. It will no longer be possible to file new opt-out requests for those patents. After that point, the only way to avoid the UPC will be to seek protection through separate national patent applications in the countries concerned.
For further information on the available patent filing routes and strategic considerations, please see our article on patent filing strategy: https://heip.co.uk/why-your-patent-filing-strategy-should-match-your-business-strategy/
