In order to provide you with quick and straightforward assistance, we have compiled the most frequently asked questions about the unitary patent here. The answers offer initial guidance and clarify the most important points at a glance. If you cannot find the answer to your question, please do not hesitate to contact us.
A unitary patent is a European patent that is effective for all participating member states collectively or uniformly, i.e., a patent for the entire territory of the participating member states. In contrast, with a traditional European bundle patent, the scope of the patent must be determined through validation in individual states. The unitary patent is applied for after the European patent has been granted in the course of validation. In addition, other states that are not part of the unitary patent system can also be selected in the course of validation.
Unlike traditional multiple patents, the unitary patent requires only a single annual fee payment, which is made centrally to the European Patent Office (EPO). For traditional European multiple patents, on the other hand, the annual fees must be paid separately in each validated member state in accordance with the respective national regulations.
No, it is not possible for some of the member states participating in the unitary patent system to opt out of the unitary patent. This is partly because the annual fees are payable centrally to the EPO. This means that payment of an annual fee automatically renews the unitary patent as a whole.
The unitary patent is applied for at the European Patent Office and can be applied for all European patents granted after May 31, 2023.
The Unified Patent Court may have jurisdiction over legal validity proceedings and infringement proceedings for both unitary patents and all existing and future European bundle patents. However, the jurisdiction of the Unified Patent Court may be excluded for European bundle patents by means of a valid opt-out. As before, only national proceedings in the respective validated states are then possible for the bundle patent in question. This allows a patent holder to avoid having an existing bundle patent invalidated in all participating member states at once through a centrally conducted nullity proceeding.
Yes. In order to be able to bring infringement proceedings before the Unified Patent Court as the patent holder of a bundle patent even after opting out, it is possible to withdraw from the opt-out once. However, as with the opt-out, this is only possible as long as no action relating to the patent in question has been brought before a national court. It is not possible to make a new opt-out declaration after previously withdrawing from the opt-out.
By declaring an opt-out, you have the option of protecting your own patent from complete destruction by a central attack in all member states participating in the unitary patent. It is therefore a strategic decision. Withdrawing an opt-out can be useful if you are confident in your legal counsel and want to take action against a patent infringer in all participating member states with a single lawsuit, or if an indirect patent infringement cannot be enforced in national proceedings due to a lack of dual domestic relevance. Instead, an action for indirect patent infringement before the Unified Patent Court may be successful, as only the double member state reference is relevant here. This means that supply chains may be easier to attack before the Unified Patent Court under certain circumstances.
None. A European bundle patent that has already been granted remains valid, as existing patents are not automatically converted into unitary patents.
The language of proceedings before the Central Chamber is the language in which the patent was granted (German, English, or French). Before a local or regional chamber, the language of proceedings is an official language of the European Union that is the official language or one of the official languages of the contracting member state in whose territory the chamber is located. The language of proceedings before a regional chamber may also be determined by the official languages of the relevant contracting member states belonging to the regional chamber. In Belgium, for example, Dutch, French, German, and English could be the languages of proceedings.
There are currently 18 participating member states. A granted unitary patent is then valid in all of these member states.
The European bundle patent basically offers the possibility of reaching other countries within and outside the EU in addition to the territory covered by the unitary patent. A total of 39 countries can be reached with the European bundle patent.
Provided that no opt-out has been effectively declared, infringement actions based on European bundle patents may be brought within a transitional period of seven years before both the Unified Patent Court and national courts in the countries in which the patent in question is validated. This parallel jurisdiction of the Unified Patent Court and the national courts remains unaffected even if an action is brought before one of these courts. This means that an action can still be brought before a national court at a later date if it was initially brought before the Unified Patent Court, and vice versa. If an opt-out has been declared effective, only the national courts have jurisdiction. A patent infringement action based on a unitary patent can only be brought before the Unified Patent Court. A patent infringement action based on a national patent can only be brought before the relevant national courts.
The time limits imposed by the Unified Patent Court are relatively strict compared to those imposed by national courts. In patent infringement proceedings before the Unified Patent Court, a first-instance decision can be expected within 10 to 12 months. Each decision applies to all member states of the Unified Patent Court. This means that an enforceable title can be obtained in a comparatively large area through a single court proceeding.
The Unified Patent Court has a central chamber for first instance proceedings based in Paris with divisions in Munich and Milan, as well as several local and regional chambers in the contracting member states. There are several local chambers in Germany: in Düsseldorf, Mannheim, Munich, and Hamburg. The Court of Appeal is based in Luxembourg.
That depends on how many member states you want patent protection in. As a rule of thumb, a unitary patent is generally cheaper than a European bundle patent that is validated and maintained in at least four contracting states. In particular, translation costs, fees charged by national patent offices, lawyers’ fees, service provider costs, and subsequent annual fees in the respective countries are eliminated.
Yes. There is no double protection prohibition as exists, for example, between the European patent family and the national German patent, whereby the national patent loses its effect if it does not extend beyond the European patent family. This means that in Germany, protection can exist in parallel from both a unitary patent and a national patent.
As a result of Brexit, the United Kingdom is not participating in the unitary patent system or the Unified Patent Court. Patent protection is therefore only possible at the national level or via validated European bundle patents. The national courts of the United Kingdom are responsible for enforcing property rights.
Since Malta was not yet a member state of the EPC at that time, it is likely that a unitary patent cannot be applied for pending applications filed before March 1, 2007. The principle applies that member states can only be designated if they were member states of the EPC at the time of filing. However, it should be noted that there is no direct information on this issue.
