The European Unitary Patent – May 2016 Update
May 16, 2016
We provide a further update on recent progress towards the issuance of the first European unitary patents.
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.
It is expected that Bulgaria will shortly deposit its instrument of ratification in Brussels with the General Secretariat of the Council of the EU (as required for the ratification to have effect), in which case it will become the 10th country to do so, the others being Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal and Sweden.
Therefore, ratification by one more country (plus 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.
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.