Einheitspatent & Einheitliches Patentgericht

The Unitary Patent and the Unified Patent Court supplement the existing European patent system. 

They offer users of the European patent system additional options for patent protection and patent disputes in Europe.

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THE EUROPEAN PATENT PACKAGE (EPP) 

Establishing the Unitary Patent (UP) and the Unified Patent Court (UPC) is a milestone in the development of harmonized patent law in Europe. The now-established European Patent Package includes the Regulation (EU) No. 1257/2012 (“Unitary Patent Regulation”, UPR), the Council Regulation (EU) No. 1260/2012 („Unitary Patent Translation Regulation“, EPSVO), and the Agreement on a Unified Patent Court (UPCA).UPTR).

WHAT IS THE UNITARY PATENT?

Upon request, the proprietor of a European patent can obtain a unitary patent. Said unitary patent shall provide protection within the territories of the member states participating on the unitary patent. In contrast to the European bundle patents, the unitary patent provides for protection in a sub-territory of the EU consisting of the territories of the participating member states. It has a unified effect within said sub-territory and can be transferred, limited, revoked, invalidated or lapse only with respect to the entire sub-territory. Partial transfer, limitation or invalidation is not possible and the unitary patent will always lapse in its entirety. Annuity fees need to be paid for the unitary patent in its entirety. It is not possible to pay annuity fees only for selected countries within the unitary patent. A unitary patent is registered in a special register.

IN WHICH COUNTRIES IS THE UNITARY PATENT VALID AND WHAT HAPPENS WITH THE CONVENTIONAL EUROPEAN BUNDLE PATENTS?

A patent with unitary effect is generally valid in the participating member states. These states are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia and Sweden. However, in order to have the uniform effect, the EPP must also be in force in the relevant participating member state at the time of registration. A subsequent extension of the unitary patent is no longer not possible.

In addition to a Unitary Patent, traditional national Patents based on European Patents exist, even if a Unitary Patent was requested. Such traditional national Patents are available in EPC contracting states in which no unitary patent protection is possible, since the states are non-EU member states of the EPC, i.e. Switzerland, Norway and Turkey, or non-participating EU member states such as Spain, Croatia and Poland, or participating member states in which the Please contact us, we are pleased to develop an individual strategy.

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HOW IS A UNITARY PATENT GENERATED?

First, a European patent must be granted by the European Patent Office. The granting procedure remains fundamentally unchanged. Within one month of the publication of the notice of grant of the European patent, an application for unitary effect must be filed with the European Patent Office. During a transitional period (the so-called "sunrise period"), after Germany has deposited its ratification and until the entry into force of the Convention, it is possible to file an early application for unitary effect or to request a postponement of the decision on the grant of the European patent. During this "sunrise period," an opt-out from the jurisdiction of the UPC can also be requested (see below). For details and costs, please contact us directly.

WHAT ARE THE RISKS OF THE PATENT WITH UNITARY EFFECT?

A significant risk of a patent with unitary effect is that it is a single intellectual property right and can therefore only be declared invalid uniformly in all member states where it is effective. This "centralized attack" can lead to the loss of the entire patent with unitary effect. For particularly valuable European patents, an application for unitary effect should therefore be carefully considered. Furthermore, the application for unitary effect establishes the jurisdiction of the European Patent Office (EPG) for the corresponding patent. This means that jurisdiction for contentious proceedings no longer lies with the national courts and their established practice. "Forum shopping," as sometimes practiced in the past, is then no longer possible. Finally, it should also be noted that annual fees cannot be reduced if it later turns out that patent protection is only needed in a few countries. The full annual fee is always due for a patent with unitary effect, even if protection is ultimately only required in Germany, for example. Contact us for strategic advice tailored to your needs!

DOES THIS MEAN THAT THE NATIONAL COURTS ARE LOSING THEIR IMPORTANCE?

National courts do not lose their jurisdiction entirely. For a transitional period of seven years after the entry into force of the UPC Agreement, they retain jurisdiction over invalidity or infringement actions relating to traditional national patents within the European bundle patent for which the so-called "opt-out" declaration has been submitted. Thus, during this transitional period, for example, invalidity actions against the German part of a European patent (without unitary effect) can be brought before the Federal Patent Court, or infringement actions can be brought before German infringement courts. Contact us for strategic advice tailored to your needs regarding the UPC Agreement or the UPC Act!
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