Unitary patent

Definition : Unitary patent

The unitary patent, or European patent with unitary effect, is a European patent granted by the European Patent Office to which the proprietor has had, on request, a uniform effect attached across all member states taking part in the enhanced cooperation and bound by the Agreement on a Unified Patent Court. It provides identical protection in all those states, may be limited, transferred, revoked or lapse only in respect of all of them together, and falls within the exclusive jurisdiction of the Unified Patent Court. The system has been in force since 1 June 2023.

Why the concept matters

Until 2023, a European patent turned, after grant, into a bundle of national patents that had to be validated, translated, maintained and enforced country by country. For the participating states, the unitary patent replaces that bundle with a single title, subject to a single renewal fee, enforceable and challengeable in one go before one court. The choice between unitary effect and national validations is now one of the proprietor’s first strategic decisions, and it determines the geography of future litigation: an injunction covering eighteen states, but also a revocation taking them all away.

How unitary effect is obtained

Unitary effect requires a European patent granted with the same set of claims for all participating states. The proprietor must request it from the European Patent Office within one month of the publication of the mention of grant in the European Patent Bulletin, in the language of the proceedings. The Office registers the unitary effect in the Register for unitary patent protection, and the unitary patent takes effect from the date of publication of the mention of grant. During a transitional period, the request must be accompanied by a full translation of the patent: into English if the language of the proceedings is French or German, into another official language of the Union if it is English. A compensation scheme covers part of the translation costs of certain applicants, in particular small and medium-sized enterprises.

The territory covered

The unitary patent does not cover all states of the European Patent Convention, nor even all member states of the Union. Its territory is that of the participating states in which the Unified Patent Court has exclusive jurisdiction on the date the unitary effect is registered. Seventeen states were covered on 1 June 2023; Romania joined on 1 September 2024, bringing the number to eighteen. For the other states, including Spain, Poland, Switzerland and the United Kingdom, the proprietor must rely on classic national validations. A single European patent may thus combine unitary effect with national validations outside the unitary territory.

The regime of the title

The unitary patent provides uniform protection and has equal effect in all participating states. It may be limited, transferred, revoked or lapse only in respect of all those states, but it may be licensed for the whole or part of the territory. As an object of property, it is governed by the national law of the participating state in which the applicant had its residence or principal place of business on the filing date and, failing that, by German law, the law of the seat of the Office. Renewal fees are paid to the European Patent Office in a single payment, at a level set by the Select Committee of the Administrative Council.

Before the Unified Patent Court

The unitary patent falls within the exclusive jurisdiction of the Unified Patent Court for infringement, revocation, declaration of non-infringement and provisional measures. The transitional regime of Article 83 of the Agreement, which allows national courts to be seised for seven years and a European patent to be removed from the Court’s jurisdiction by an opt-out, does not apply to the unitary patent: a proprietor who chooses unitary effect accepts the Court, and the request for unitary effect operates as a withdrawal of any opt-out registered for the application. A revocation decision, like an injunction, therefore takes effect across the whole unitary territory.

Key takeaways

The unitary patent simplifies and concentrates: one fee, one title, one court, one judgment. That concentration is an advantage for a proprietor who wants to enjoin quickly and widely, and a risk for one whose patent is fragile, since revocation is unitary too. The choice is therefore made patent by patent, in light of the strength of the title, the markets actually targeted, the cost of national validations and the litigation strategy contemplated. The one-month deadline after grant means the decision must be prepared before grant, not after.

Sources

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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