Austria: Coming Soon: The European Patent With Unitary Effect

The European Patent with Unitary Effect ("Unitary Patent") already has a longstanding and ambiguous history, although its underlying legal framework has not yet come into force. But 2021 brought a considerable push towards implementation of the Unitary Patent system.

What is the Unitary Patent?

The Unitary Patent is not the same as the European Patent, the latter being a well-established regime for obtaining patent protection in various European countries by filing one single application, including centralised examination, but resulting in independent national rights in designated countries. While the Unitary Patent will be based on a European Patent and will also be administered by the European Patent Office, contrary to European Patents designating single member states it will have a unitary effect in all member states of the Unitary Patent system (similar to the EU Trademark or to Registered Community Designs).

Which countries are part of the Unitary Patent system?

Although the Unitary Patent system is partially based on EU Regulations, most, but not all EU Member States joined the Unitary Patent system. Spain and Croatia do not take part but are still eligible to join at a later stage. The United Kingdom was originally part of the system but lost its eligibility to participate due to Brexit, leading to the UK's withdrawal from the Unitary Patent system as well.

Unified Patent Court

Lots of discussion has circled around the question of which courts would oversee patent infringement and nullity proceedings relating to Unitary Patents. The participating states agreed on the establishment of a Unified Patent Court. This consists of a court of first instance with a central division located in Paris (and a section in Munich), and with regional and local divisions with limited competencies at other locations (a local division is to be established in Vienna, for example). The court of appeal (and the registry) will be in Luxembourg and arbitration/mediation centres are to be established in Lisbon and Ljubljana.

Timing

The implementation of the Unitary Patent system was delayed due to constitutional challenges brought against the German ratification of the Unified Patent Court agreement. However, in mid-2021 the German Constitutional Court dismissed these challenges and freed up the way for Germany to finally ratify the agreement. Now the focus is on speeding up the implementation process. Optimistic observers believe the system may be operating as early as late 2022. Hence, current (and future) patentholders should consider the possibility of protecting and enforcing Unitary Patents and putting in place respective strategies.

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