Unitary Patent – A turning point in the history of patents in Europe

This year marks the 50 years anniversary of the European Patent Convention (EPC), which forms the basis of the European patent system. European patents are granted by the European Patent Office (EPO), of which Iceland became a Member State in 2006. European patents are granted in all 39 member states, but to take effect, the patent must be validated in each state within a certain deadline. From 1 June 2023, however, the much awaited Unitary Patent system will become a reality.

One patent – 25 states

The Unitary Patent system consists only of countries of the European Union (EU). Iceland is therefore not part of the system as such, as are other EEA/EFTA countries and several EPO member states, although everyone may use the system. Two European regulations, Regulation (EU) No 1257/2012 implementing enhanced cooperation in the area of the creation of the unitary patent protection and Regulation (EU) No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements form the basis of the system together with the Unified Patent Court Agreement (UPCA). The two regulations entered into force in 2013, however, subject to the UPCA Agreement being ratified by a minimum of 13 states, including France, United Kingdom and Germany. Germany was the 17th country to complete ratification last February.

The filing and granting procedure of European patents will remain unchanged. After granting, it will be possible to obtain a Unitary Patent with one single validation in the EU countries participating in the cooperation i.e., up to 25 countries. It will still be possible to select individual states or request validation of the patent also in the EPO states that are not part of the system. The EPO will for the Unitary Patent manage the patent register and renewal fees.

Preparation - "Sunrise Period"

On January 1, 2023, a preparatory process began at the EPO for the implementation of the system. From that time on, a Unitary Patent may be requested based on applications already filed at the EPO. It may also be requested that the grant of a patent be postponed until the new system is up and running. After June 1, 2023, the time limit for requesting validation of a Unitary Patent will be one month from the date of grant. The time limit for requesting validation in individual states remains unchanged, but it is generally three months.

One court – one procedure

The role of the Unified Patent Court is to handle disputes concerning the validity of patents and infringement matters, both for Unitary Patents and European Patents validated in individual countries. It will therefore not be necessary to initiate legal proceedings for European patents in multiple jurisdictions with potentially different results. The jurisdiction of the Court also extends to Supplementary Protection Certificates (SPCs) based on European patents. The court's offices will be situated in various Member States, but its Central Division will be in Paris, Local divisions will be i.e. in Stockholm and Copenhagen and the Court of Appeal in Luxembourg. It will also be possible to seek a settlement at the Patent Mediation and Arbitration Centre, situated in Lisbon and Ljubljana.

Opt-out

The Court will start operating on June 1, 2023, but after March 1, 2023, it is possible to choose opt-out for European patents, i.e. applications, granted patents and SPCs based on them, from the Court's jurisdiction. This must be requested before a lawsuit against the patent is filed. The Court's jurisdiction cannot be avoided after suit.

It will be interesting to see what effect the new system will have on the protection of patents in Europe in the future, not least in Iceland - will the number of validations increase, or will Iceland simply be left out?