Three reasons why you should not overlook the Unitary Patent

Costs and simplicity

The unitary patent provides a uniform protection across all participating Member States for only a fraction of the fees involved by a "traditional" European patent covering the same States. It can be obtained by filing a single request with the EPO, without the need for a validation at the level of each covered State. This may considerably simplify administrative workload and further reduce costs, since it is no longer necessary to resort to local attorneys and to comply with national translation requirements. Likewise, transfers and licenses no longer have to be registered on a country-by-country basis and will be recorded in a central register. If you are a university, a public research organization, or small and medium-sized enterprise (SME), you may also be entitled to additional cost reduction schemes when filing unitary patents.

The guarantee of centralized proceedings before the UPC

During the transitional period (i.e. seven or fourteen years), if you own a European patent without unitary effect but which is not opted out, any third party could bring invalidity or non-infringement proceedings before national courts against your patent. This may limit your ability to take advantage of the centralized effectiveness of the UPC. There is no such risk with a unitary patent, since the UPC will have exclusive jurisdiction. Also, keep in mind that in some key jurisdictions (e.g. France and Germany), it will be possible to obtain a national patent on top of your unitary patent, for the same invention. This extra layer of protection can limit the adverse effects of a potential invalidation of the unitary patent by the UPC.

The future of the European patent system

At the end of the transitional period, all European patents will have to be litigated exclusively before the UPC (except those opted-out before the expiry of this period). At this point, owning a unitary patent or a "non-opted-out" European patent will essentially have the same practical effects, except that the unitary patent will systematically cover all participating Member States. It could prove valuable, at that point, to have already gained experience with the strategic management of patents on which the UPC has exclusive jurisdiction. In short: starting to apply for unitary patents on some of your inventions is probably reasonable, if not the best way forward if the EU is a key market for you.

Authored by Stanislas Roux-Vaillard and Adrien Bonnet.