The UP (sometimes referred to as a European patent with unitary effect) potentially offers cost and administrative savings for applicants wishing to obtain patent protection across the participating states.
It is designed to be an additional option for innovators, to promote the use of the patent system, particularly among small and medium-sized enterprises (SMEs), and (with the Unified Patent Court (UPC)) to facilitate enforcement of patents.
However, there are several aspects that limit the UP’s appeal, at least in its early stages. These include the limited number of states participating (the United Kingdom, Spain, and Switzerland, for example, are all outside the system), the risk of granted patents being revoked across all participating states, and the uncertainties that arise from a new, untested system.
The current European patent system with national validation (using, where applicable, the London Agreement) will continue to be available, as will national patent systems. These may be preferred options by some applicants, depending on their circumstances.
It is important to emphasise that both classical European patents and the new UPs will be prosecuted before the European Patent Office (EPO) using exactly the same procedures (search, examination, publication, etc.) up to the time of grant.
At this point the applicant will have the option to request UP protection for the participating states and/or to proceed with national validation in the normal way.
What will become the UP or European patent with unitary effect has been many years in the making. The two European Union regulations establishing the system entered into force in January 2013. However, 13 member states, including Germany, France, and Italy, had to ratify/accede to the Agreement on a Unified Patent Court (UPC Agreement) before the regulations could apply. Germany became the 17th member state to ratify the UPC Agreement in February 2023, meaning that it will enter into force on 1 June 2023.
In principle, this means that a UP may be requested for any European patent granted on or after 1 June 2023. Ahead of that a sunrise period began on 1 March 2023 to permit opt-outs of existing rights.
Note that the EPO has introduced two transitional measures to support applicants seeking UP protection. As of January 2023, these procedures are now available for European patent applications for which a communication under Rule 71(3) of the European Patent Convention (EPC) has been dispatched and where the applicant has not yet replied.
The first measure enables applicants to file requests for unitary effect early (i.e. before the system officially starts), allowing the EPO to register unitary effect immediately at the start of the system assuming the patent grants after that date . The second measure allows applicants to request a delay in issuing the decision to grant, enabling them to keep open the option of requesting unitary effect when it becomes available.
Participating member states
As an EU project, the UP and UPC are in principle open to all 27 EU member states. But three countries (Croatia, Poland, and Spain) will not take part in the system, at least for now, so in practice it will cover up to 24 EU member states (see the map below).
We use some cookies which are essential to make our website work. We also use analytics cookies to help us understand if our website is working well and to learn what content is most useful to visitors.
You can accept or reject our analytics cookies and change your mind at any time, using this settings panel.
You should note that we use providers that may process cookie data outside the UK and Europe.